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MAY 2017

THE CHANGING WORKPLACES REVIEW


AN AGENDA FOR WORKPLACE RIGHTS
Summary Report SPECIAL ADVISORS
C. MICHAEL MITCHELL
JOHN C. MURRAY
TABLE OF CONTENTS

THE CHANGING WORKPLACES RECOMMENDATIONS ON Related and Joint Employer...............................50


REVIEW: AN AGENDA FOR LABOUR RELATIONS........................................23 Remedial Powers of the OLRB...........................51
WORKPLACE RIGHTS......................................03
CONCLUDING Right of Striking Employees...............................51
The Mandate......................................................03 RECOMMENDATIONS.......................................29
Just Cause Protection........................................52
Elements of the Review......................................04 Introductory Recommendations.........................29 Successor Rights...............................................52
General Observations & Upfront Enforcement and Administration .......................30
Recommendations.............................................04 Ability of Arbitrators To Extend
Sectoral Regulation and Exemptions.................37 Arbitration Time Limits in the
Guiding Principles, Values Arbitration Procedure.........................................52
and Objectives...................................................07 Changes to Basic Standards..............................39
Conciliation Boards............................................52
Trends in the Economy and Who is an Employer and Who is
the Workplace ...................................................08 an Employee.......................................................44 Concluding Recommendations..........................52
Exclusions .........................................................44
RECOMMENDATIONS ON
EMPLOYMENT STANDARDS............................11 Exclusions from Collective Bargaining...............44
Changes to Basic Standards..............................17 Acquisition of Bargaining Rights........................46
THE CHANGING WORKPLACES
REVIEW: AN AGENDA FOR
WORKPLACE RIGHTS

THE MANDATE economy itself, particularly in light Examples of the third category are other
of relevant trends and factors operating items included in the Minister of Labour’s
In February 2015, the Minister of Labour Mandate Letter: the gender wage gap,
initiated the Changing Workplaces on our society, including globalization,
issues specific to migrant workers, and
Review (Review) building on government trade liberalization, technological legislation dealing with compulsory
commitments in the 2014 Throne Speech change, the growth of the service interest arbitration for certain groups
and the Minister of Labour’s 2014 sector, and changes in the prevalence of workers.
Mandate Letter. We, C. Michael Mitchell
and characteristics of standard
and the Honourable John C. Murray, were We were tasked with examining academic
appointed to lead the Review, with the employment relationships. and inter-jurisdictional research, and
Minister stating that: soliciting input from the general public
The Review focuses on the Labour and stakeholders by holding consultation
Relations Act, 1995 (LRA) and the sessions and accepting written
The Changing Workplaces Review will
Employment Standards Act, 2000 (ESA). submissions.
consider the broader issues affecting The majority of sections under both Acts
the workplace and assess how the are in scope for the Review, with the We reported back to the Minister of
current labour and employment law following exceptions: Labour with our progress in February
2016 and released an Interim Report
framework addresses these trends and in July 2016. Our final report and
(1) construction industry provisions of
issues with a focus on the LRA and the the LRA; recommendations have now been
ESA. In particular, the Special Advisors (2) minimum wage; and submitted. This summary provides an
will seek to determine what changes, if overview of these recommendations.
(3) policy discussions for which
any, should be made to the legislation other independent processes have
in light of the changing nature of the been initiated.
workforce, the workplace, and the

THE CHANGING WORKPLACES REVIEW | An Agenda for Workplace Rights 03


ELEMENTS OF THE REVIEW
In conducting the Review, we relied
upon the support of academics and
consultation with experts in a variety of
fields. We engaged frequently with leading
academics who focus on workplace
issues from a variety of perspectives,
including economics, social science,
and law. Several research projects were
commissioned focusing on specific issues
that were in the Review’s scope.

During the review process, two phases


of consultation took place to provide the
general public and stakeholders with the
opportunity to comment on how the LRA
and ESA could be amended to reflect the
changing nature of work. A discussion
paper, titled, “Guide to Consultations”
was released to initiate the review and
consultation process.

In the first phase of consultation,


there were 12 public sessions held
across Ontario. Altogether, we heard
over 200 public presentations and and individuals and received over 280 GENERAL OBSERVATIONS
received over 300 written submissions. written submissions in response to the & UPFRONT
These comments contributed to the Interim Report.
RECOMMENDATIONS
development of our Interim Report, which The final report and recommendations are
was released in July 2016 and contained This is the first independent review in
based on the broad range of stakeholder Canada to consider specific legislative
approximately 50 issues and over 225 and expert comment received, academic
options for further consultation. changes to both employment standards
input, and research projects and and labour relations in a single process.
The second phase of consultation was information provided by the Ministry Considering both acts simultaneously,
initiated after the release of the Interim of Labour. within the broader context of workplace
Report, and concluded in October and economic change, has provided
2016. We met with several groups a unique and original perspective to
the issues.

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We were mandated to consider the need We found that there is no doubt that A Workplace Rights Act
for reform through the lens of the changes there are many legitimate social and & Greater Awareness
that have been occurring in the workplace economic concerns regarding vulnerable
In the course of this review, we have
and in the economy over a lengthy period employees in precarious employment.
noted that there is a widespread lack
of time. The recommendations are aimed The recommended changes seek, among
of knowledge and understanding of
at creating better workplaces in Ontario other things, to improve conditions for
workplace rights under both Acts.
where there are decent working conditions those who find themselves in these
and widespread compliance with the law. circumstances.
These changes would benefit workers
directly, and employers and society in
The mandate also directed us to be
supportive of business in a changing
“independent
This is the first
review in
general. Employees will benefit from a economy. The Ontario Chamber of Canada to consider specific
better workplace and an enhanced ability Commerce and the Keep Ontario legislative changes to both
to assert their basic rights. Employers will Working Coalition have said: “the goals of employment standards and
benefit from happier and more productive economic growth and improved employee labour relations in a single
workplaces and from more robust rights are not mutually exclusive.” There
enforcement. Better enforcement will help is a need to take a balanced approach
process.
to ensure that employers that play by the to change, and we have endeavoured to Considering both acts
rules do not experience unfair competition strike this balance by taking the bona fide
from those that do not. Responsible, interests of all stakeholders into account
simultaneously, within the
law-abiding businesses, that represent a in developing recommendations. broader context of workplace
vast majority of employers, are entitled to and economic change, has
compete on a level playing field. All parties We recognize the importance of the role provided a unique and original
that businesses play in creating growth
will benefit from a better knowledge
and understanding of basic rights and in the economy and how this contributes
to the well-being of all Ontarians. With
perspective to the issues.

obligations.
increased competitive pressures, it
During hearings held across Ontario as is necessary to consider the impact Raising the level of knowledge and
part of the Review, we heard that the of any policy initiative on business general consciousness about these rights,
combination of low income, lack of control costs. This means taking into account together with robust enforcement of the
over scheduling, lack of benefits such businesses’ need for flexibility and law, will raise the level of compliance
as pensions and health care, personal reduced administrative burdens. It also and improve the quality of people’s lives
emergency leave or sick leave, all together means encouraging a level playing field by in the workplace. The goal is that both
or in various combinations, creates a supporting employers in understanding employers and employees are aware of
great deal of uncertainty, anxiety, and and meeting their obligations. their legal rights and responsibilities in the
stress which undermines the quality of workplace and the law is easy to access,
life and the physical well-being of a wide to understand and to administer.
swath of workers in our society.

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Greater education of workplace parties
and more robust enforcement, including
better protection of employees seeking to
enforce their rights, will put pressure on
non-compliant employers and help to level
the playing field for compliant employers.

Powers of Inspectors
In terms of administration and
enforcement, it is impractical to combine
the role of enforcement officers in
occupational health and safety and
employment standards immediately.
However, government should consider
some blending of the roles over time,
sharing of information between regulatory
programs and joint strategic approaches
to enforcement. A first step could be to
consider the necessary legislative and
program changes to authorize and require
officers to report any violation of labour
legislation that comes to their attention.
The creation of a “Workplace Rights Act” a) basic decent working conditions,
is an important step in creating a culture
of compliance. Currently, employee rights
in the workplace are established by three
b) a safe and healthy workplace,
c) the right to engage in unionization and “change,
To effect sustainable
it will be
meaningful collective bargaining.
pieces of legislation: the Employment critical to foster a culture of
Standards Act, 2000, the Labour The unification of the rights under the compliance where respect for
Relations Act, 1995, and Occupational single umbrella of a Workplace Rights minimum terms and conditions
Health and Safety Act. These Acts should Act should also assist in education, of employment and the rights
be consolidated into a single Act and interpretation, and enforcement.
should be more expressly focused on of employees to organize
workplace rights. Government, unions, employee advocates and to collectively bargain

Workplace parties should be educated


and employers should work cooperatively
and all should invest in the education in all
is universal.

on their obligations and rights with the rights and responsibilities of workers
respect to: and employers.

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GUIDING PRINCIPLES, following factors are key to achieving recognized the importance of freedom
VALUES AND OBJECTIVES this objective: the creation of rules that of association in responding to the
are easy to understand and administer; imbalance between the economic
Potential changes to legislation must be the provision of the necessary tools to power of the employer and the relative
evaluated in light of the changing nature help workplace parties understand their vulnerability of individual workers. The
of the workforce, the workplace, and the rights and obligations; and, consistent Court has emphasized that collective
economy. This initiative has been guided enforcement of the law. bargaining is a fundamental aspect of
by the following six principles, values Canadian society that enhances human
and objectives that have been identified 3. Access to Justice dignity, liberty and the autonomy of
by stakeholders, and through a review workers.
of earlier reviews and reports, academic The Chief Justice of Canada has
studies, international standards, and spoken on the importance of access
5. Creating an Environment that is
judicial decisions. to justice stating that: “In order to
Supportive of Business in our
maintain confidence in our legal
Changing Economy
1. The Decency Principle system, it must be, and must be seen
to be accessible to Canadians.” Access As stated earlier, we have considered
Professor Harry Arthurs has stated to justice has both procedural and the needs of business to remain
that labour standards “should ensure substantive components. Especially competitive and for flexibility as very
that, no matter how limited his or in the employment arena, complaint important objectives in making our
her bargaining power, no worker… procedures must afford ordinary recommendations.
is offered, accepts or works under Ontarians the opportunity for fair and
conditions that Canadians would not just adjudication and enforcement of 6. Stability and Balance
regard as ‘decent’.” This principle their rights. The recommendations in
informs the overriding public policy goal We recognize the need for balance in
this Final Report aim to reduce barriers
of addressing precarious employment our recommendations and for stability
to accessing justice.
and building effective protection for in the process of bringing change to the
vulnerable workers. workplace. The law should not undergo
4. The Right to Freedom of diametrically opposed rapid swings
Association and Collective if it is to produce stable expectations
2. Achieving Respect for the Law Bargaining
through Meaningful Enforcement of what is required of its citizens –
and a Culture of Compliance Collective bargaining is now recognized particularly when it comes to the
as a fundamental constitutional right. exercise by Ontarians of fundamental
To effect sustainable change, it will be The Supreme Court has made it Charter rights. In this process, we have
critical to foster a culture of compliance clear that in the employment context, endeavoured to craft recommendations
where respect for minimum terms and freedom of association guarantees for change that are balanced and, if
conditions of employment and the the right of employees to associate implemented, will have a reasonable
rights of employees to organize and meaningfully in the pursuit of collective likelihood of being sustained by
to collectively bargain is universal. The workplace goals and includes a right subsequent governments.
to collective bargaining. The Court has

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TRENDS IN THE ECONOMY
AND THE WORKPLACE
The employment and labour legislation
currently in place in Ontario reflect a
different time and different circumstances
and do not adequately address today’s
workplace issues. There has been a shift
from manufacturing to service jobs many
of which are low wage.

Technological advances and the


transformation to the knowledge economy
mean that the type of workforce that
is needed now is very different from
the past. In some cases, computers
are superior to human labour and the
scope of what can be done by machines
is growing. Even those businesses
that are not directly tied to technology
have come to rely on information and
communications technology for some
day to day operations as trends such
as global networking and offshore
outsourcing become attractive Unionization in the private sector has financially attractive. This has put pressure
for business. dropped dramatically (from 19.2% in on many companies to lower costs and
1997 to 14.3% in 2015) making increase flexibility through changes to their
Many industries that were formerly employment standards and their workforce’s compensation and hours
characterized by large workforces enforcement much more important of work.
concentrated under a relatively small for the non-unionized worker.
number of employers are being replaced The standard Monday to Friday work
by supply chains made up of networks Globalization and trade liberalization week, with predictable hours and
of smaller businesses that provide goods have had a profound impact on the wages, health benefits and a pension
and services to larger lead companies. competitiveness of many Ontario plan has declined in prevalence. Non-
This reorganization provides greater businesses. There is an abundance of standard work made up of multiple jobs,
flexibility in the organization of work, low-wage labour in many countries and, unpredictable shifts, work through a
flatter hierarchies and a leaner workforce. when combined with lower transportation temporary help agency (THA), temporary
costs, overseas production is often (often seasonal) limited term contracts

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and/or solo self-employment has food services, child-care, custodial
grown nearly twice as fast as standard services, some parts of the public sector,
employment (1997 to 2015 average agriculture, and construction. There are
annual rate of 2.3% per year). several characteristics that can create
vulnerability and precarity, including:
employment through a temporary help
“fromThere has been a shift
manufacturing to
agency or on a temporary contract,
working part-time or seasonally, unstable
service jobs many of which are employment with little or no job security,
low pay, and no access to pensions or
low wage.
benefits. The group experiencing such
Technological advances and employment includes disproportionate
numbers of women, but also increasing
the transformation to the
numbers of men, members of racial and
knowledge economy mean ethnic minorities, immigrants, and youth.
that the type of workforce that
is needed now is very different
from the past.

However, the mandate of the Review
transcends the standard/non-standard
classification of employment. It requires
a focus not only on workers whose
employment is contingent, uncertain or
temporary, but also on full-time workers
in low-paid employment without pensions
or benefits, and on part-time employees
in similar low-paid employment who
often may not want to work more hours
because of other education or family
commitments.

Across the economy, there are a


significant number of vulnerable workers
in precarious jobs. This trend is particularly
evident in certain sectors, including: retail,

THE CHANGING WORKPLACES REVIEW | An Agenda for Workplace Rights 09


RECOMMENDATIONS
ON EMPLOYMENT
STANDARDS

The following principles are particularly breaches of the act do not occur. It is e) developing the capacity to link quickly
relevant to the ESA enforcement designed to address non-compliance to other sources of government data.
recommendations: at a systemic level and not only on the
basis of complaints. We recommend Law Enforcement Agency
yy increased awareness by employees a combination of existing and new
and employers of their ESA rights and As part of strategic management, the
measures for comprehensive strategic
obligations; Ministry must move closer to becoming a
enforcement that include:
yy increased protection for employees more traditional law enforcement agency
who exercise their ESA rights; a) allocating more resources to pro-­active and less an agency involved in customer
enforcement initiatives (including spot service. There are several elements to
yy consistent and strategic enforcement; this change, including obtaining the
checks, audits, and inspections);
yy access to justice; and, capacity to mount public campaigns
b) increasing the use of targeted
yy stronger sanctions and deterrence. inspections particularly in sectors against systemic violations of the Act and
where there are large numbers of engaging in strategic litigation, but the
We commented on the extent of, and most important change is moving away
reasons for, non-compliance, and vulnerable and precariously employed
employees; from a complaint dominated system of
concluded that there are too many people enforcement.
in too many workplaces who do not c) increasing strategic capacity through
receive their basic rights. data collection and analysis of Campaigns to Counter
complaint data; Systemic Non-compliance
Strategic Enforcement – d) focusing at the top of industry
A Combination of Existing structures– the top of the supply chain New sector-based enforcement strategies
and New Approaches or franchisor for example – where need to be designed to change employer
decisions are made that influence behaviour and improve compliance with
Strategic enforcement involves a set of priority being given to those sectors where
policies and practices that have the goal compliance by those lower in the
chain; and, non-compliance is most problematic.
of changing employer conduct so that

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The Ministry should initiate action on processing all complaints with priorities Also, the frequency of individual
a province-wide or sectoral basis to set by the individual circumstances of complaints may not be an accurate
address systemic problems in the the complainants. In this system, the indicator of a larger sectoral problem of
workplace such as unpaid internships Ministry cannot establish priorities and non-compliance.
and/or misclassification of employees as act strategically in the interest of broader
independent contractors. Both of these workplace compliance.
practices are illegal and widespread,
poorly understood, and should be If achieving a culture of compliance is
“thatForarethose complaints
not investigated,
addressed systemically. a rational objective, new enforcement we recommend a new system
strategies are required. This does not
minimize the importance of investigating
of adjudication that is intended
A Strategic Approach to Litigation to be accessible and cost
complaints and recovering wages which
Currently, the Ministry does not see its will likely always remain a core function. effective.
role as defending the vast majority of However, a complaint-driven process
the decisions and policies applied by — on its own — will not achieve the Complaints would be made to
its officials, but leaves it to the parties desired results. the Ontario Labour Relations
to do so. This often contributes to an Board (OLRB) which would
uneven playing field where the resources The volume of complaints has leveled
have specialized regionally
of the employer outweigh the resources off at about 15,000 per year, but there
is always a backlog of uninvestigated based adjudicators to conduct
of the individual employee and creates
a situation where strategically important and unresolved complaints and there are an informal dispute resolution
decisions of ESOs may be undefended by
the Ministry.
lengthy wait times. process.

At the same time, the fundamental
Consistent interpretation and application changes in the workplace have resulted in
many vulnerable employees in precarious The current policy of investigating all
of the Act necessitate an active
jobs whose basic employment rights complaints must be reassessed. It is
participation in litigation by the Ministry
are being denied. This occurs for many expensive, time consuming, and not the
as part of strategic enforcement.
reasons; however, it is exacerbated by the most effective means of identification
overwhelming number of complaints and and remediation of larger patterns of
The Current Complaints-based
by the lack of resources required to make non-compliance. The only way in which
System and the Necessity
timely investigations. the Ministry can fulfill its obligation to
for Change
strategically enforce the statute is by
Currently in Ontario, worker-initiated A complaints-based system presents changing the fundamental way it does
complaints are the foundation for challenges and problems for employees business with respect to the processing
enforcing employment rights. A central who lack the knowledge that their rights of complaints.
focus of the Ministry’s activities is gave been violated and fear reprisals.

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Education and Outreach
As noted in the general recommendations,
education and outreach are essential
to enable compliance. With that goal in
mind, we make several recommendations
to increase awareness of the ESA among
employers and employees.

We recommend that the Ministry’s


ESA 2000 Policy and Interpretation
Manual, which is no longer available for
purchase through an external publisher,
be posted online so that the policies
and interpretations of the Director of
Employment Standards can be accessed.

We further recommend that the


government consider including ESA
information in the high school curriculum,
similar to the steps that have been taken
in relation to the Occupational Health
An Accessible Process for The Ministry or the OLRB should facilitate and Safety Act. We also recommend
Complainants to Have Claims access by self-represented parties that the Ministry assess the impact of
Not Investigated by the Ministry by providing explanatory materials in the mandatory self-audit provisions on
of Labour Adjudicated plain language with respect to both the awareness and compliance. Finally, we
procedure and the applicable principles recommend that the Ministry continue to
For those complaints that are not
of law, including the burden of proof and work with employers, unions and worker
investigated, we recommend a new
basic rules of evidence. advocacy groups to develop strategically
system of adjudication that is intended
to be accessible and cost effective. educational materials and to continue to
Vice-Chairs of the OLRB who hear explore other educational and outreach
Complaints would be made to the Ontario complaints in the first instance should be
Labour Relations Board (OLRB) which strategies.
given, by statute, the power to consult
would have specialized regionally based with the parties as part of the decision- Related to education, we endorse an
adjudicators to conduct an informal making process. Consultation is less internal responsibility system for ESA
dispute resolution process. Access to formal and less costly and more efficient matters similar to the system in the
justice for both employers and employees than an adversarial process. Occupational Health and Safety context.
requires a process that is user-friendly We recommend that the Ministry
without sacrificing the quality or fairness encourage but not require that employers
of outcomes. establish such a system.

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of up to $100,000 per infraction. This
would provide an important element of
deterrence, and reflect the public policy
importance of the reprisal issue.

Reprisal claims are currently not


given priority by the Ministry. It takes
approximately 90 days before claims are
assigned to a Level 2 ESO for investigation,
and on average it takes approximately 51
days to conclude an investigation. This is
unacceptable in cases where an employee
has been terminated.

Reprisal complaints alleging termination of


employment should be given priority and
the Ministry should not only announce to
the public that reprisal complaints alleging
termination of employment will be given
Increased Protection for Employees likely acts as a disincentive to reporting priority but it should also develop tight
Who Seek to Enforce Their Rights contraventions particularly for the most timelines to deal with complaints which
vulnerable employees should be investigated and completed
Timely and effective investigation of within a matter of days.
reprisal complaints, and timely and An expedited process for the investigation
effective remediation of claims found and determination of reprisal complaints Temporary Foreign Workers
to be established, go hand-in-hand would have the effect of emphasizing the
with effective law enforcement. Fear of importance of the anti-reprisal provisions Both the Law Commission of Ontario and
reprisal must be combatted by a rigorous, of the ESA particularly if combined with the Federal Labour Standards Review
timely and effective response in cases the imposition of appropriate sanctions Commission have recommended that
of alleged reprisal, and by the availability designed to deter such conduct. expeditious and fair processes be put in
and imposition (in appropriate cases) place for dealing with alleged reprisals
of meaningful sanctions to deter such Education and awareness of rights and against Temporary Foreign Workers and
conduct. Fear of reprisal presents a major obligations and of anti-reprisal provisions for hearing cases that could result in
barrier to filing employment standards generally could be increased by giving repatriation.
complaints. publicity to cases of reprisal.
We recommend that in the case of
Delay in investigating and remedying a We recommend that an office of Director temporary foreign workers, no termination
valid complaint of reprisal, as a matter of Enforcement be created which could of employment – whether for reprisal or
of common sense, is a factor that seek significant administrative penalties for other alleged reasons – should be

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effective unless and until an order is made Several of our recommendations entitlements. Finally, we recommend
by a neutral adjudicator permitting such focus on the process for review at the that the ESA be amended to provide for
termination. OLRB. When the OLRB is reviewing an undertakings enforceable by the OLRB
employment standards officer’s ruling, all to be entered into on a voluntary basis
Access to Justice evidence relied upon by the officer should between the Ministry and an employer.
be included in the record, along with
Recognizing that many employees may
the officer’s Reasons for Decision. The Security for Employee
need assistance and advice throughout
applicant (i.e., the party seeking a review) Remuneration
the ESA claims process, including in
should have the burden to prove the
review applications, we recommend that We made recommendations to improve
officer’s decision was wrong.
supports be provided to employees and the ability to recover employees’ unpaid
to employers by: We also recommend that the OLRB have monetary entitlements by changing
an increased regional presence and the provisions to strengthen the director
yy increasing resources to expand the liability and collections schemes.
authority to conduct consultations, and
mandate of the Office of the Worker
believe that there is a need for explanatory
Advisor with a new funding model to Sectoral Regulation and
materials and legal support for the parties.
help employees with claims; Exemptions
yy developing and publishing on its Remedies and Penalties Our recommendation for sectoral
website a list of lawyers who are
Enforcement mechanisms that encourage regulation is designed to provide a
prepared to provide pro bono
compliance, deter non-compliance and consultation process with representative
assistance to employees and
provide appropriate and expeditious of employers, employees, and
employers; and,
restitution to employees whose ESA rights government when exemptions are
yy developing and publishing a list reviewed or requested or where sector
have been violated are an essential part of
of worker advocacy groups, trade specific regulation is being considered.
an effective compliance strategy.
unions, legal clinics and others who The process is designed to allow all
are prepared to provide assistance to We recommend several measures to stakeholders an opportunity to advance
employees. contribute to a more effective compliance and protect their legitimate interests, to
strategy. We recommend that the amount provide advice and solutions and to seek
In terms of the claims process, we
for tickets be increased from $295 to consensus on outcomes that address the
recommend the removal of the
$1,000, and the penalties for Notices bona fide concerns and interests of all
requirement that employees contact their
of Contravention be doubled. A new participants.
employers before filing a claim, a step
provision would allow the OLRB to issue
that is seen as a major barrier for some The current 85 exemptions and special
administrative monetary penalties up to
employees. We also support measures to rules result in only a minority of Ontario
$100,000 per contravention. We further
encourage anonymous tips and to protect workers being fully covered by the
recommend that the OLRB have authority
the anonymity of those who bring ESA Act. The existing exemptions do not
to order employers to pay the costs of
issues to the Ministry’s attention. fit into a consistent policy framework
an investigation, and that employees be
paid interest on their unpaid monetary and the “patchwork of exemptions”

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disproportionately affects the the interests of those directly affected employers and employees to provide
disadvantaged and contributes to the have a voice if the resulting regulations are advice to government.
precariousness of work and the presence to be fair, balanced, and workable.
of vulnerable groups. The Government should make the review
Clearly, responsibility for decision-making of existing exemptions a priority and
However, Ontario has a broad and diverse lies with the government. However, in the adopt a sector specific approach to the
economy and one size does not always world of employment and labour relations, regulation of scheduling through the same
fit all. Sometimes it is neither practical nor the involvement of the stakeholders process.
appropriate to insist on a single standard often results in better understanding
for all. While sector specific regulation of positions and in compromise. The If there are no exemption issues in
often results in derogations from the government’s understanding of the the sector, then a committee should
statutory norms, it also means that the needs and interests of employers be established to set up a permanent
standard for employees in a sector could and employees, and the quality of its process for discussion of:
be better than elsewhere. decision-making, will be enhanced if a) the application of the provisions of the
representatives of those most involved ESA to the sector; and,
Simply put, uniformity and strict equality have an opportunity to be fully engaged
do not reflect the reality of the complexity in the problem-solving exercise, with b) enforcement issues and proactive
of the modern economy. The caveat government. enforcement in the sector.
is that there should be a transparent
process in which the opinions, interests, We also provided some recommendations
Review of Existing Exemptions related to specific exemptions:
and suggestions of stakeholders are
taken into account and that is designed The existing exemptions should be
yy elimination of exemptions related to
to generate outcomes more precisely reviewed expeditiously. Some of the
students (student minimum wage rate
tailored to the needs and legitimate substantive exemption provisions raise
and exemption for the “three-hour
interests of employers and employees. difficult questions about their purpose,
rule”) because of their inconsistency
Exemptions, and specific regulations, if origin, breadth, and ongoing justification.
with current values across Canada;
justified, should be focused (not overly Many workers, especially vulnerable ones
in precarious work, are being denied yy phasing out of the liquor servers’
broad), balanced, decent, and fair.
either minimum wages, or overtime or minimum wage as it institutionalizes
The process recommended is designed hours of work protection, or all of the dependence on tips for servers and
to ensure that the interests and above, without reasons that are apparent. may disproportionately impact some
solutions proposed by employers and vulnerable segments of the working
employees are heard by each other The Government should establish a population; and,
and by government, and to provide Sectoral Committee Process that may yy on the basis that the current approach
an opportunity to achieve outcomes be used when existing exemptions are is inadequate, revising the exemption
based on consensus. Moreover, areas of being reviewed, when new exemptions for managerial and supervisory
potential sector specific regulation, such are being considered, and when sector employees so that both salary and job
as scheduling, require a process in which specific regulations are contemplated duties are considered.
composed of representatives of

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CHANGES TO BASIC Absent objective factors that justify it, However, for several reasons, such as
STANDARDS differential treatment based on part-time, possible unintended consequences for
casual, temporary, contract or seasonal full-time employees and significant costs
Part-time, Casual, Temporary status it is neither fair nor reasonable, to employers, we do not recommend
and Seasonal Employees but an arbitrary and unjustified distinction extending the principle to the treatment
affecting up to one in four employees of benefits and pensions. Instead,
A key question raised is whether it is fair in Ontario. we recommend that the government
to treat part-time, casual, temporary, initiate an urgent study as to how, at
contract and seasonal employees least a minimum standard of insured
differently than comparable full-time
employees. We see this issue as one of “principle
We state that the
that those
health benefits can be provided across
workplaces, especially to those full-time
the more important areas where the law and part-time employees without
should change. who perform the work
of comparable full-time coverage, the self-employed and including
We recommend a new rule that limits small employers. We also recommend
employees should be paid the working with the Federal Government to
differential pay for these groups of same accords with fairness
employees unless there are objective review the private pension system and
and decency as it is grounded considering public programs such as the
grounds such as seniority, merit or other
objective factors that justify a difference
in pay. We explain our perspective that
in equality of treatment.
” Guaranteed Income Supplement to assist
low earning Ontarians.
historically there have been negative
entrenched attitudes towards part-time Scheduling
Also, the present policy is leading to
work. These attitudes arose possibly adverse impact discrimination among The ESA does not include rules
because of a fear in the last century women, youth, and increasingly, older regulating work schedules. We assert
that the rapid growth of part-time work workers, and racial and ethnic minorities. that uncertainty in scheduling practices
would replace full-time work. They also It also negatively impacts vulnerable is a key contributing factor in making
arose because of discriminatory attitudes workers in precarious work as part-time work precarious. Recognizing the need
devaluing the work, as it was thought that workers are often low wage earners for predictable schedules for employees
women and young people who performed and are highly concentrated in the retail in certain sectors and the variability of
most of the work were less committed trades, accommodation and food services scheduling requirements, but that one
to their jobs. These attitudes do not and industries. size cannot fit all in this complex area, we
should not apply today. recommend a sector specific approach
A similar recommendation was made to the regulation of scheduling, prioritizing
We state that the principle that those by three other commissions in Canada the retail and fast food sectors for review.
who perform the work of comparable starting in 1983 and was not followed. It is To implement this, we recommend the
full-time employees should be paid the long past time for its adoption in Ontario development of a policy framework and
same accords with fairness and decency and we believe it is unconscionable to the use of sectoral committees.
as it is grounded in equality of treatment. ignore it any longer.

THE CHANGING WORKPLACES REVIEW | An Agenda for Workplace Rights 17


We also discuss the merits of an
employee’s “right to request” such things
as changes in work hours’ schedules, or
location, with protection from retaliation
by the employer. We recommend a new
rule that provides an employee (after
1 year of service) the right to request,
in writing, that the employer decrease
or increase their hours of work, give
them a more flexible schedule or alter
the location of their work. The employer
should be required to give the employee
an opportunity to discuss the issue and
provide reasons in writing if the request is
refused. There should be no appeal of an
employer’s decision on the merits and the
employer’s obligation to respond should
be limited to one request per calendar
year, per employee.

Temporary Help Agencies


We outline three major categories for our We recognize that abuse of this rule is
We generally focus our review of policy objectives and recommendations: possible. For example: a client employer
temporary help agencies on the part of equality and permanent jobs; termination terminates the relationship the day before
the industry staffing unskilled or lower pay; and workplace safety for assignment the 6-month qualifying period ends,
wage workers to client employers. In employees. and then brings the agency employee
doing so, we assert that the triangular back after a short period, such that the
nature of the relationship between the We recommend limiting the amount requirement for equal treatment is never
agency, the client, and the assignment of time during which an assignment operational. We assert that there should
employee leads to these employees employee can be paid less than the be a minimum reasonable period of time
being among the most vulnerable and workers the client hired directly. This (i.e., not less than three months) before
precarious in the workplace. For example: limit is not intended to limit the duration the employee can be brought back.
the employee may be removed from their of the triangular relationship itself, if all
work without notice by the client, may be parties wish to continue it, but differential Another goal is to encourage and make
placed in “permatemp” positions, may pay cannot continue indefinitely. We possible the achievement of permanent
receive remuneration that is significantly recommend a qualifying period of six employment for assignment workers. In
lower than those hired directly by the months before there is a requirement for achieving this goal, we recommend that
client in the same job, and may face more equal pay; countries like the UK have a clients make their best efforts to ensure
dangerous work. similar system.

18 THE CHANGING WORKPLACES REVIEW | Summary Report


assignment employees are aware of all current law, the agency has termination However, we recommend some changes
available job openings with the client and pay requirements, but the client to the system to lessen administrative
that the client considers their application employer has no direct obligations to the burden for employers, such as: the
in good faith. Additionally, the client assignment employee in this regard. We elimination of the requirement to get
should consider whether the assignment find that applying the temporary layoff Ministry of Labour approval for employees
employee is suitable for an available rules to assignment workers when an to work 48 – 60 hours a week (while
position prior to being terminated. assignment to a client is terminated by the maintaining ministry approval for weekly
client, is not appropriate, and recommend hours above 60) and the elimination of a
an alternate scheme. blended overtime rate.
“theOverall, we found that
existing system of
Our view is that the agency should We also recommend that the Ministry
provide the requisite notice to the agency enshrine in legislation its current policy
hours of work and overtime employee as soon as the client employer that employee consent can be obtained
pay regulation work effectively, wants to end the assignment, with electronically.
but we also note that the obligations to pay the equivalent amount
if notice is not given. The payment To give employers further flexibility, based
approach is complex and on the concept that sectoral variation may
obligation would not be required if the
somewhat unconventional, and be appropriate in some circumstances,
assignment worker is assigned to work for
that some provisions may pose another client within a period of 13 weeks. we recommend an option for obtaining
difficult issues for employers group consent to work overtime, or for
which could be addressed at Finally, in the context of workplace safety other hours of work rules, through a


a sectoral level. for assignment employees, all aspects secret ballot vote, if it is appropriate for
of the risk and liability, including the that sector.
responsibility for injuries suffered in the
workplace, should be with the client We also conclude that averaging overtime
employer, and not the agency. is a necessary and valuable tool for
In order to avoid impacting professional increasing employee flexibility in hours of
and higher skilled employees on longer work while not increasing employer costs,
assignments and projects, we have Hours of Work and Overtime
but that this ability to average should have
recommended an income cap on the Overall, we found that the existing system limits. For this reason, overtime averaging
operation of the recommendations of hours of work and overtime pay should only be permitted where it would
requiring equal treatment after six months. regulation work effectively, but we also allow for flexibilities like a compressed
note that the approach is complex and work week, continental shift or other
The termination pay provisions for
somewhat unconventional, and that some flexibilities in employee scheduling desired
assignment employees in the ESA are
provisions may pose difficult issues for by employees, or to provide for employer
very complex. It is doubtful if many
employers which could be addressed at a scheduling requirements where the
assignment employees fully understand
sectoral level. total number of hours worked does not
their entitlement, and this lack of
knowledge creates vulnerability. Under the exceed the threshold for overtime over the
averaging period.

THE CHANGING WORKPLACES REVIEW | An Agenda for Workplace Rights 19


Personal Emergency Leave, We recommend increasing the current Employees find it difficult to know if they
Paid Sick Days, Other Leaves Family Medical Leave provisions from 8 have received their entitlements.
weeks in a 26-week period to 26 weeks
We have highlighted the importance of Everyone would benefit from simplified
in a 52-week period to mirror the recent
personal emergency leave (PEL) and provisions but the complexity of the
federal Employment Insurance Act
bereavement leave and recommend provisions arises as a result of complex
amendments.
the extension of the entitlement to all trade-offs. We were attracted to the
employees - not only to those employed Construction Industry Model which is
in workplaces with 50 or more employees.

We recommend that bereavement leave


“increasing
We recommend
vacation
an addition of a specific percentage
to all wage payments. For example,
employees could be paid 3.7% of wages
should be removed from the ESA’s PEL entitlement to 3 weeks per year earned in each pay period and would
provisions and be made an independent after 5 years of employment with not receive public holiday pay on each
entitlement for up to three unpaid days the same employer as Ontario individual holiday but there are concerns
for the family members covered by the
is not currently on par with and complications with this as well. The
current PEL provisions. We conclude,
given the nature of bereavement leave, its
availability should not be tied to or capped
other Canadian jurisdictions.
” formula for the calculation of PHP is just
one issue to consider and therefore we
recommend that Part X of the ESA be
by the use of personal emergency leaves
reviewed in its entirety and revised and
taken by an employee.
We also recommend the expansion be replaced by statutory provisions that
We further recommend the PEL of Crime-Related Child Death or are simpler and easier to understand
provisions be amended to provide an Disappearance Leave to include the death and apply.
annual entitlement of seven days, and be of a child (non-crime related). Recognizing
expanded to include domestic violence as that the death of a child (whether crime- Vacations
a reason for absence. related or not) and the disappearance of
We recommend increasing vacation
a child are equally disabling to a parent,
As to the requirement to provide evidence entitlement to 3 weeks per year after
we recommend that the amount of leave
of entitlement to PEL for illness, we 5 years of employment with the same
offered should be the same (a leave of up
recommend that employers be required to employer as Ontario is not currently on
to 104 weeks).
pay for doctor’s notes if they request them par with other Canadian jurisdictions.
from an employee. Public Holiday Pay
Who is an Employer and
With respect to paid sick leave, while we The Public Holidays law is extremely Who is an Employee
recognize that this protection would be long, complex, and results in one of
The ESA’s “related employer” provision
beneficial, we conclude that the more the most common contraventions.
allows separate but related legal entities
important first step is the extension of Many employers do not understand
to be treated as one employer if the
PEL to all employees so that everyone the provisions, while others rely on the
requirements set out in the provision
has a basic right to time off in the case of intricacy of the provisions to attempt to
(section 4) are met. This provision creates
personal emergency. not give employees their entitlements.

20 THE CHANGING WORKPLACES REVIEW | Summary Report


another source for satisfying employees’ a) Interns and trainees
monetary ESA entitlements when their
direct employer is unable to or refuses Interns and trainees (referred to as
to pay. We conclude that one of the persons receiving training in the ESA)
requirements – the so-called “intent are employees for purposes of the Act
or effect” test – has had the effect of and entitled to the minimum standards
undermining the original purpose of the set unless several conditions are
provision and recommend that it be met. We recommend the elimination
repealed. of this exclusion for various reasons
including the abuse that is apparent by
We identify the issue of employees some employers. It is also difficult to
who are misclassified – intentionally understand and enforce.
or unintentionally – as independent
contractors not covered by the ESA as b) Crown employees
a significant one and recommend that Only certain parts of the Act apply to
the Ministry make misclassification a employees of the Crown or a Crown
priority enforcement issue. We further agency, and to their employer. “Crown”
recommend that the term “dependent refers to the government of Ontario.
contractor” be added to the definition We recommend the elimination of this
of “employee” in the ESA. Finally, we partial exclusion due to the lack of an
recommend that where there is a dispute apparent rationale for its continuance.
about whether a worker is an employee,
the person receiving the worker’s services
has the burden of proving the worker is
not an employee and an obligation to
provide all relevant evidence.

Exclusions from Basic Standards


The ESA applies to most employees and
employers in Ontario. There are however
exclusions from this rule of general
application. We focus on two exclusions
and recommend their elimination.

THE CHANGING WORKPLACES REVIEW | An Agenda for Workplace Rights 21


RECOMMENDATIONS
ON LABOUR RELATIONS

The Labour Relations Act, 1995 (LRA) yy Members of the architectural, dental, approach must involve an integrated
is the primary statute regulating labour land surveying, legal or medical and comprehensive set of ideas, not
relations for most Ontario workplaces, in profession employed in a professional a hodgepodge of compromises and
the private and public sectors. capacity; and, cherry-picking. The most important
yy Agricultural and horticultural considerations are the criteria that lie at
Exclusions from employees. the heart of the constitutionally-protected
Collective Bargaining process of meaningful collective
In regard to agricultural and horticultural bargaining, namely employee choice and
The LRA does not apply to certain
employees, it is possible that a limited employee independence.
categories of employees. We recommend
exception might be warranted to exclude
that some of these exclusions be Freedom of choice by employees
some or all persons employed on a
removed. should be protected by a secret ballot
“family farm”. In addition, we recommend
that certain restrictions could be placed vote process that protects both choice
The review of current exclusions is
on strikes and lock-outs in respect of and secrecy, provided that the law also
informed by the recent jurisprudence from
agricultural workers. protects their independence to select
the Supreme Court of Canada finding
or reject a bargaining agent. Employer
that the right to meaningful collective
As with agricultural workers, we (or union) misconduct that undermines
bargaining is an essential component
recommend that certain restrictions on employee independence destroys the
of freedom of association, pursuant
strikes and lock-outs involving members reliability of the secret ballot process.
to section 2(d) of the Charter. On this
of these particular professions may be
basis, many of the exclusions in the LRA The current provisions of the LRA are
appropriate.
should be eliminated. In other words, not sufficiently responsive to the adverse
these employees should enjoy the rights impact that employer misconduct has
Acquisition of Bargaining Rights
and protections afforded by the Act. In on the rights of employees to free and
particular, we recommend that all of the In this controversial area of policy, there independent choice. The premise that
following groups of employees that are have been many changes to the rules steps can be taken to ensure a second
currently excluded should be covered: over the last 25 years by all political vote is sufficient to counter the effects
parties, without any independent or of employer misconduct is flawed. While
yy Domestics; outside assessment. The correct there may be rare cases where a union
yy Hunters and trappers;

THE CHANGING WORKPLACES REVIEW | An Agenda for Workplace Rights 23


could win a second vote following should be able to support. Unions significantly improve labour relations
employer misconduct, we are of the view should favour a system where employee success in first contract negotiations,
that given our collective experience over free choice is maximized and unlawful including after remedial certification.
a lifetime of practice, the misconduct employer interference is effectively c) To permit a decertification or
cannot be rectified and the second remedied. Employers should support displacement application to have
vote will generally be tainted by the the preservation of the secret ballot, priority over the intensive mediation
misconduct. Employer conduct that is legitimate employer free speech and open or first contract arbitration process
designed to raise, or results in, employee discussion of the issues by unions and would undermine the recommended
concern about the future stability or employees. Most employers understand remedial approach, and such
security of their employment leaves an that employers who engage in unlawful applications should be untimely until
indelible mark. Fear of supporting the conduct should not be rewarded with those processes are completed.
union, or the hope of reward for voting the defeat of a union. The employer
d) Provided they have appropriate
against the union, which results from community, which is overwhelmingly
support in a proposed bargaining
illegal threats or promises, is not likely law-abiding and respectful of the rights
unit, unions should be able to obtain
rectified by a decision of a labour board of its employees under labour law and
contact information for employees
even if coupled with a “mea culpa” the constitution, will have no interest in
in the proposed unit in advance of a
statement made by the employer to protecting those employers who violate
certification application.
employees as a result of a board order. the law and who undermine the integrity
of the secret ballot process. With respect to this last recommendation,
We recommend preservation of the
the constitutional right of employees
secret ballot vote process for certification Accordingly, we recommend that the
to effective and meaningful collective
provided there are appropriate remedies secret ballot process for certification
bargaining is founded on the freedom
for employer misconduct. Without should be preserved, provided that the
of employees to associate. Employees
effective remediation for unlawful employer following recommendations are also
cannot band together to pursue their
conduct, there are compelling reasons accepted:
workplace goals if they don’t know who
for a return to card-based certification.
a) Where the true wishes of the the other employees are, where they
If an employer unlawfully interferes with
employees are unlikely to be work, how to contact them, or how many
the employees’ rights to freedom of
ascertained because of employer of them there are.
association and honest independent
choice so that the true wishes of the misconduct, remedial certification and
The secret ballot vote process is premised
employee are unlikely to be ascertained, first contract arbitration should follow
on an informed, free and accessible
that conduct must trigger a meaningful unless the union bargains in bad faith
electorate of employees. Being unable to
remedy, namely certification without a vote or otherwise disqualifies itself from first
determine who comprises the electorate
and access to first contract arbitration. contract arbitration.
and being unable to communicate with
b) The “mediation-intensive” model them are barriers to achieving certification
The package of recommendations introduced in British Columbia in 1993 based on the wishes of a majority of
will result in a principled and workable should be considered as a reasonable employees in a secret ballot vote, and is
system, which both unions and employers model for Ontario that could inconsistent with the principles of employee

24 THE CHANGING WORKPLACES REVIEW | Summary Report


choice and independence. If the union or campaign, an employer maintains the Electronic Membership Evidence
other employees cannot communicate right and the means to communicate to and Electronic Voting
effectively with the electorate, or if only their own employees, and it often does
We also recommend that the OLRB, with
the employer can communicate, there is a communicate as soon as it finds out an
support from the government, update its
barrier to accessing meaningful collective organizing campaign is occurring. To level
rules and practices to allow for electronic
bargaining. Otherwise, the result is a the playing field, unions should have the
submission of information, including
flawed democratic process. Those who information necessary to communicate
electronic membership evidence. Other
champion the secret ballot process as effectively with the employees.
recommended changes to certification
the best mechanism for the expression of
include giving the OLRB explicit power
employee choice should be supportive of
to conduct votes outside the workplace,
an informed electorate.
“preservation
We recommend
of the
including telephone and internet voting.
Workplaces can be large and
geographically spread out and it can secret ballot vote process for Consolidation and Amending of
be very difficult and onerous, if not certification provided there Bargaining Units
impossible, to know the number of are appropriate remedies for Under the existing law, the parties are
employees and where they work.
Moreover, in the changing workplaces
employer misconduct.
” free to expand or to reduce the scope of
bargaining units, but it is an unfair labour
of today, employees can be employed practice to take such issues to impasse
on numerous shifts, or on a part-time (i.e., to make such a dispute the subject
or temporary basis or away from the A union should be required to of a strike or lockout). We recommend
workplace altogether, and it can be demonstrate that approximately 20% of that the OLRB have the power to modify
difficult for other employees to know the potential bargaining unit supports bargaining unit structures, if satisfied that
how and where to reach them. These collective bargaining through joining the bargaining unit or units are no longer
many practical obstacles should not the union in order to acquire the right appropriate for collective bargaining in the
be placed in the way of the exercise to be provided with the information. A circumstances. We reject the idea that
of the constitutional right to freedom similar standard could be applied to this should be restricted to cases where
of association, especially when the employees seeking to de-certify a union. the same union is involved.
employee contact information exists and We recommend a number of measures
can be easily provided. to avoid this threshold from becoming We further recommend that the
the subject of extensive litigation. We OLRB have the power in sectors or
Although privacy interests are important, also recommend measures to prevent industries where employees have been
there are also other public policy interests, the union from obtaining the list just by historically underrepresented by unions,
and these interests must be balanced. For applying for it when it has no entitlement to consolidate existing and/or newly
example, voters in a public election have to it, and penalties if the union uses the certified bargaining units involving the
no privacy interest not to be contacted or list for improper purposes. same employer and the same union, to
identified and there is a public list of voters contribute to the development of effective
and where they live. During an organizing collective bargaining relationships in these

THE CHANGING WORKPLACES REVIEW | An Agenda for Workplace Rights 25


sectors or industries. Single locations industries where employees have been one should be subject to unionization
units of the same employer are unlikely to historically underrepresented by unions. under a set of rules that does not apply
be viable, and they have concluded that We concluded that, similar to the finding to the other two. It is also unfair to
the only way collective bargaining in those with regard to a single employer with employees of the many franchisees of
industries or sectors can likely be viable multiple locations, collective bargaining the same franchisor not to have effective
is if units can be certified on a smaller with a single franchisee is unlikely to be access to collective bargaining while the
basis, such as by single location, and then viable. The only way collective bargaining employees of a competitor, who has only
varied or consolidated afterwards with in those industries or sectors can likely corporate locations or some corporate
additional locations. The OLRB would be be viable is if units can be certified on and some franchise locations, do have
given certain powers to implement this a smaller basis, such as at a single effective access.
model; e.g., to direct that the terms of a location, and then varied or consolidated
collective agreement apply in the varied or afterwards with additional locations. The OLRB would be given certain powers
consolidated unit. to implement this model; e.g., to direct
We found that it is reasonable to require that the terms of a collective agreement
Broader Based Bargaining franchisees of the same franchisor between a franchisee and union could
to bargain together. The essence of be extended to apply, with or without
Concerns have been raised that our franchise operations is that they do not modifications, to a newly certified
model of labour relations is not adequate operate their businesses in a way that bargaining unit. As with the previous
to respond to the needs of the parties in is materially different. They market the recommendations related to bargaining
the contemporary workplace, particularly same brand, sell the same products unit consolidation, the goal is to contribute
in growing sectors of the labour market and operate in the same market, under to the development of effective collective
characterized by small workplaces, the same contracts and policy manuals bargaining relationships in these sectors
diversity in employment, and nonstandard of the same franchisor. Their staffing, or industries.
work. “Broader based bargaining” labour costs, and methods of operation
has been advocated as a necessary are either the same or so similar that any We are not recommending a system
alternative or addition to our traditional differences are manageable. Moreover, where franchisees of different franchisors
labour relations model. We discuss a to the extent that there are material are compelled to bargain together or that
number of existing or proposed models differences, collective bargaining has the franchisor should be named as an
of broader based bargaining that have flexibility to accommodate them. employer with its franchisees, (unless it
been put forward as illustrating the is already a related employer within the
alternatives that could be considered, but Competitors in an industry may operate meaning of section 1(4) of the LRA).
only recommend proceeding with one either through a corporate model or a
franchise model, or a combination of We further recommend inquiries and
model involving franchisees of the same
both, and there is no good public policy further consideration of broader based
franchisor.
reason to treat one model differently from bargaining models in respect of specific
Franchisees of the same franchisor would the other. The different organizational sectors (in particular: government-funded
be treated in an analogous way as a models, for selling competing brands in homecare and the arts and entertainment
single employer with multiple locations in the same market, should not mean that sectors). We also recommend further
consultations on three issues related

26 THE CHANGING WORKPLACES REVIEW | Summary Report


to broader based bargaining, namely, Prosecutions and Penalties Successor Rights
accreditation of employer’s organizations
Anyone who contravenes the LRA The successor rights provision of the
outside the construction industry, the
may be subject to OLRB orders and LRA protects employee and union rights
compulsory formation of a council of
prosecution before the provincial courts. where there is a sale of a business,
unions, and multi-employer certification.
We recommend that the maximum fines providing that bargaining rights and
for contravention of the LRA be increased collective agreement obligations of the
Related and Joint Employers
to $5,000 for individuals and $100,000 original employer generally flow through
Questions sometimes arise under the for employers and unions. We otherwise to the new successor employer. This
LRA in regard to identifying the “true” recommend that the law in this regard protection does not currently exist in the
employer and responding to complex remain generally the same. case of contracting out and re-tendering
relationships among related or joint contracts in service sectors like security,
employers. We describe this as one of Right of Striking Employees food services, cleaning, and others.
the most difficult areas addressed in the
The LRA provides, subject to certain We recognize that there are vulnerable
review. While generally not recommending
conditions, that an employee engaging in workers in precarious work in this
changes to the existing law, we make a
a legal strike may make an unconditional situation, and recommend that successor
recommendation specifically in relation
application to return to work within rights should be applied to the building
to temporary help agencies that persons
six months of the commencement of services industries (specifically: security,
assigned by THAs to perform work for
the strike. In these circumstances the food services, cleaning) and government-
clients of the agency be deemed to be
employer is generally required to reinstate funded home care, and that a regulation-
employees of the client rather than the
the employee. We recommend that the making authority be added to the LRA
THA for the purposes of the LRA.
LRA be amended to eliminate the six- to allow for the possible expansion of
month time period for striking employees coverage to other services or sectors in
Remedial Powers of the OLRB
to make an application to return to work. the future.
Under the LRA currently, the OLRB We further recommend that the LRA be
has the power to make interim orders amended to provide for arbitration of the
where workers are terminated or refusal to reinstate an employee at the
disciplined during an organizing campaign conclusion of a strike or lock-out, or any
and certain conditions are met. We discipline of an employee by an employer
recommend that this be replaced with a during the course of a legal strike or
broad power to make substantive interim lock-out or after the expiry of a collective
orders on all matters that come before agreement.
it, pursuant to the Statutory Powers
Procedure Act. In our view, it is imperative The recommendations are as beneficial to
that the OLRB be granted the power the efficient resolution of disputes and as
to issue interim relief in order to protect good public policy in light of our Charter
the constitutional rights of employees to obligations and related considerations.
organize and form unions.

THE CHANGING WORKPLACES REVIEW | An Agenda for Workplace Rights 27


CONCLUDING
RECOMMENDATIONS

In addition to the specific recommend­ In this regard, we recommend the creation INTRODUCTORY
ations about the legislative framework of a Workplace Forum to bring together RECOMMENDATIONS
and the administration of the programs, senior representatives of government,
we also make the following general business, organized labour and employee 1. We recommend that the Employment
recommendations: advocates on a regular basis. Standards Act, 2000, the Labour
Relations Act, 1995 and the
An Ontario Workplace Forum Institutionalizing Occupational Health and Safety
the Process of Review Act be consolidated under a single
There is a compelling case to be made for Workplace Rights Act and that the
bringing together government, business, Both Acts should be reviewed periodically three parts of this new Act be entitled:
labour and employee advocate leaders, to to consider their general effectiveness in Rights to Basic Terms and Conditions
discuss the broader trends and influences light of the changing economic, social, of Employment, Rights to Collective
affecting work and the workplace, to demographic and legal trends that affect Bargaining, and Rights to a Safe and
foster broader understanding of what work and the workplace. Healthy Workplace.
is occurring and potentially to find
consensus on possible solutions. We note the highly-politicized context in 2. We recommend that the government
which labour law reform has sometimes initiate a program of education for
Stakeholders often express their views occurred in past decades. The Changing employees and employers, both with
to government, but it is rare for senior Workplaces Review aimed to examine the respect to the Workplace Rights
government officials to engage with issues on an independent and apolitical Act and the rights and obligations of
business, labour, employee advocates in basis, with full and open consultation and employees and employers under each
the same forum. The lack of interaction a wide range of views were heard and part of the Act.
and ongoing discussion hinders the considered. This approach enables a
development of effective and balanced discussion and a range of possibilities that 3. We recommend that all Ministry of
public policy. Open dialogue may lead is superior to a process driven simply Labour inspectors and officials be
to a better appreciation of interests and by politics. authorized and required to report
perspectives, and on some issues, there any violation of labour legislation that
could be a convergence of interests. In this regard, Ontario should make an on­­going comes to their attention.
commitment to an independent review of
the legislation every five to seven years.

THE CHANGING WORKPLACES REVIEW | An Agenda for Workplace Rights 29


ENFORCEMENT AND
ADMINISTRATION
Strategic Enforcement –
A Combination of Existing
and New Approaches
Proactive Inspections; Other Strategic
Initiatives; Focusing at the Top

4. Concurrent with our recommendation


for changing the current practice
of investigating all complaints, the
Ministry of Labour should allocate
more resources to proactive
enforcement initiatives, including spot
checks, audits, and inspections.
5. The proactive model of enforcement
should do the following:
a) be strengthened by targeting
monetary violations of the 6. Strategically increase the use of 8. Employment standards officers
type being detected through targeted inspections, particularly in should treat evidence of deliberate
complaints; sectors and jobs where there are non-compliance uncovered in the
b) continue to regularly collect and large numbers of vulnerable and course of complaint investigation as
analyze statistical survey data on precariously-employed employees and warranting, prima facie, an extension
compliance to determine the likely with respect to employers in specific of the investigation, subject to any
extent of non-compliance; sectors and geographic locations. overriding priorities related to targeted
inspections established as part of a
c) continue to regularly collect and 7. In the course of investigations of strategic approach.
analyze data on concentrations individual complaints, employment
of vulnerable workers in various standards officers should continue 9. Further utilize enforcement strategies
sectors of the economy; and to assess whether an expanded with a view to focusing on the top
d) continue to analyze incoming and investigation or regular inspection of industry structures – the top of
processed complaints for data should be initiated whenever there is the supply chain or franchisor, for
that may help to focus proactive an indication that the problem of non- example – where decisions are
compliance and enforcement compliance affects more employees made that influence compliance
initiatives within priority areas. than the complainant alone. by those lower in the chain. This

30 THE CHANGING WORKPLACES REVIEW | Summary Report


will involve the collection of data, Program is not required to, and will not to approve a complaint to
during investigations, about industry not, investigate all claims. be heard by the Ontario Labour
structures in relation to such matters Relations Board, just as the Director
as common employers, management 14. The claims given priority for is permitted, in certain circumstances,
structures, franchising and ownership investigation should be claims of to decline to assign the complaint to
structures, and how decisions are alleged reprisal and complaints an employment standards officer for
made regarding personnel policies. that will likely lead to an expanded investigation under the Employment
investigation in the workplace. Standards Act, 2000.
10. Develop the capacity to link quickly
to other sources of government data, 15. The Ministry of Labour should develop

“should
including information from other online assistance for complainants
The Ministry of Labour
ministries of labour in other provinces, and employers in relation to
complaints that are not being be provided
which may help identify areas with a
investigated, which will provide both with additional funding
propensity towards non-compliance.
parties step-by-step guidance and sufficient to implement a
11. The Ministry of Labour should information regarding the available comprehensive strategic
be provided with additional procedure for processing and filing enforcement approach and to
funding sufficient to implement a complaints.
hire more officers to increase
comprehensive strategic enforcement
approach and to hire more officers to An Accessible Process for Complainants the capacity for conducting
increase the capacity for conducting to Have Claims, Not Investigated by the proactive and targeted
proactive and targeted inspections.
Ministry of Labour, Adjudicated

16. The Ontario Labour Relations


inspections.

A Strategic Approach to Litigation
Board should be the forum for the
12. Ministry of Labour counsel or adjudication of individual complaints 18. The Ministry of Labour should appoint
representatives at review hearings not investigated by the Ministry of part-time vice-chairs in each of the
before the Ontario Labour Relations Labour, provided the Director of seven judicial districts in the Province
Board should actively participate in Employment Standards approves of Ontario outside Toronto to hear
proceedings to ensure that the best such complaints as ones to be filed complaints that are not investigated
evidence and the law are before the and processed by the complainant. by an employment standards officer.
adjudicator.
17. The Director of Employment 19. Vice-chairs who hear complaints
The Current Complaints-based System Standards should determine whether in the first instance should have
and the Necessity for Change a complaint is to be investigated or all the powers of an employment
processed by a complainant to the standards officer and the requisite
13. The Employment Standards Act, Ontario Labour Relations Board and, authority to adjudicate complaints
2000 should be amended to make it in making such a determination, the and make orders necessary to
clear that the Employment Standards Director should have the authority compel remediation of the violations

THE CHANGING WORKPLACES REVIEW | An Agenda for Workplace Rights 31


found to have occurred. In addition, Education of Employees and addition, the Ministry of Labour
without restricting the generality of Employers – Increasing Awareness should assess the impact of the
the foregoing, the vice-chair should of Rights and Obligations self-audit provisions on compliance
have the right to award wages, and awareness.
Education and Outreach
fees and compensation, interest on
wages owed and the right to order 27. The Ministry of Labour should
Education and outreach are essential
the posting of notices in conspicuous continue to explore, be aware
tools in creating a culture of compliance.
places at the place of employment of and consider the efficacy and
We therefore recommend that:
of the complainant or in other places cost-effectiveness of implementing
deemed appropriate. 23. The government should consider educational and outreach strategies,
including basic instruction on the including those suggested by
20. Vice-chairs of the Ontario Labour rights and entitlements of employees stakeholders and those used in other
Relations Board who hear complaints under the Employment Standards Act, jurisdictions.
in the first instance should have the 2000 in the high school curriculum.
power to consult with the parties as Internal Responsibility
part of the decision-making process. 24. The Ministry of Labour should make
28. The Ministry of Labour should
its Policy and Interpretation Manual
21. Employers who elect to contest an encourage the establishment of
available online to be accessible by
employee complaint (where there internal responsibility systems by
everyone.
has been no investigation) should be employers.
required to produce copies at the 25. The Ministry of Labour should
29. The Ministry of Labour should provide
hearing of all documents and business continue to actively collaborate
assistance and advice to employers
records relevant to the complaint and with employers, unions, worker
who wish to establish such systems.
to the employer’s response. advocacy groups, and employer
associations to identify candidates
22. The Ontario Labour Relations Increased Protection for Employees
for pro-active, strategic and targeted
Board, or the Ministry of Labour in Who Seek to Enforce Their Rights
communications aimed at employees
consultation with the Board, should and employers in sectors where there Greater Protection for Employees
create explanatory materials for are many vulnerable employees and from Reprisals
unrepresented parties regarding both high incidents of non-compliance.
the complaint procedure and the 30. The Employment Standards Program
applicable principles of law, including 26. The Ministry of Labour should target should develop, implement and
the burden of proof and basic rules of employers for self-audits pursuant publicize a policy for the speedy
evidence. to section 91.1 of the Employment investigation of complaints by
Standards Act, 2000, particularly employees, including whistleblowers,
in sectors where there are many alleging termination of employment
vulnerable employees and high based on the exercise of rights under
incidents of non-compliance. In the Employment Standards Act, 2000.

32 THE CHANGING WORKPLACES REVIEW | Summary Report


31. The policy should emphasize that Temporary Foreign Workers Removing a Barrier to Claimants
reprisals, where termination of
employment has occurred, will be 34. The Ministry of Labour should 38. The Employment Standards Act, 2000
given priority by the Ministry of Labour work with the appropriate federal should be amended to remove the
and that investigations will normally be agencies and ministries to develop Director of Employment Standards’
commenced within five days of receipt and implement an expeditious and ability to require that an employee
of the complaint. accessible procedure, which is who is of the view that the Act has
available to address cases of alleged been or is being contravened inform
reprisals that result in termination or the employer of the basis of his or

“consider
The government should
including basic
unjust dismissal for temporary foreign
workers prior to repatriation under the
her view.
Anonymous, Third Party, Whistleblower
terms of their work permit.
instruction on the rights and and Individual Complaints and
entitlements of employees Confidentiality of Identity of the
Access to Justice
Complainant
under the Employment Improving the Complaint and Review
Standards Act, 2000 in the Process – Assistance to Employee Anonymous Complaints
high school curriculum.
” Complainants
39. The Ministry of Labour should make
available, and widely publicize
35. Increase the resources and expand
the mandate of the Office of the on its website and elsewhere, an
32. Complaints of termination of Worker Advisor with a new funding Employment Standards Act, 2000
employment warranting speedy model developed to help employees hotline for the receipt of tips by
investigation should include cases with claims under the Employment telephone or online.
where an employer has refused to Standards Act, 2000.
allow an employee to return to work Confidentiality
after a leave of absence, pursuant to 36. The Ministry of Labour should,
40. In relation to education, awareness
the Employment Standards Act, 2000. in all judicial districts in Ontario,
programs and initiatives by the
develop and publish on its website
33. The Ministry of Labour should publish Ministry of Labour, it should
a list of lawyers in those districts
the policy and, in doing so, take steps be emphasized that good faith
who are prepared to provide pro
to clearly communicate the purpose whistleblower reportings of violations
bono assistance to employees and
and substance of the anti-reprisal are encouraged and protected under
employers.
protections of the Employment the Employment Standards Act, 2000.
Standards Act, 2000. 37. The Ministry of Labour should develop
41. The stated policy of the Employment
and publish a list of worker advocacy
Standards Program should be to
groups, trade unions, legal clinics and
protect against the disclosure to
others in Ontario who are prepared to
the employer of the identity of a
provide assistance to employees.
whistleblower complainant who

THE CHANGING WORKPLACES REVIEW | An Agenda for Workplace Rights 33


wishes to keep that information strategic initiative is warranted instead 50. The Ontario Labour Relations
confidential, with the qualification of, or in addition to, conducting an Board, or the Ministry of Labour in
that the whistleblower’s identity may investigation of a complaint. consultation with the Board, should
be disclosed by order of a court or create explanatory materials for
tribunal resulting from the investigation Applications for Review unrepresented parties regarding
of the complaint. 46. Employment standards officers, both the review procedure and the
when they issue the reasons for applicable principles of law, including
42. Complaints from a whistleblower of the burden of proof and basic rules of
alleged reprisal by an employer should their decision, should be required
to include copies of all of the evidence.
be given priority by the Employment
Standards Program, as should cases documents that they relied upon when 51. In all judicial districts in Ontario, the
of reprisal brought by employees as reaching their decision (e.g., payroll Ministry of Labour should develop and
discussed in Part 5. records, disciplinary notices, medical publish on its website lists of lawyers
certificates). and legal clinics in those districts
43. The stated policy of the Employment willing to provide pro bono legal
Standards Program should be to 47. The Employment Standards Act,
2000 should be amended to provide assistance to parties with respect to
protect against the disclosure to the applications for review.
employer of the identity of a third- that, on an application for review, the
party complainant who wishes to burden of proof is on the applicant Settlements
keep that information confidential, with party to prove, on a balance of
the qualification that the third party’s probabilities, that the decision made 52. No changes are recommended.
identity may be disclosed by order of by the employment standards officer
a court or tribunal resulting from the is wrong as a matter of fact and/or law Remedies and Penalties
investigation of the complaint. and should be overturned, modified or
Enforceable Undertakings
amended.
44. The Ministry of Labour should 53. The Employment Standards Act,
implement a policy to not disclose 48. Increase regional access by
2000 should be amended to provide
(in documentation or otherwise) the appointing part-time vice chairs of
for enforceable undertakings to be
identity of the whistleblower or third- the Ontario Labour Relations Board
entered into on a voluntary basis
party complainant to the employment to sit and hear review applications
between the Ministry of Labour and
standards officer assigned to and employee complaints in each of
an employer.
investigate the complaint, to ensure the seven judicial districts in Ontario
that confidentiality is not inadvertently outside Toronto. 54. Enforceable undertakings should
breached. be enforced by the Ontario Labour
49. Vice-chairs of the Ontario Labour
Relations Board.
45. In cases of a complaint by an Relations Board who hear applications
employee, whistleblower or third party, for review should have the power to
the Ministry of Labour should consider consult with the parties as part of the
whether a targeted inspection or other decision-making process.

34 THE CHANGING WORKPLACES REVIEW | Summary Report


The Current Approach to Sanctions and
Proposed Changes

55. Schedule 4.2 of O. Reg 950 under the


Provincial Offences Act currently sets
fines for violations of the Employment
Standards Act, 2000 at $295.
Schedule 4.2 should be amended to
set the fine for a Part 1 prosecution
under the Provincial Offences Act
in the amount of $1,000 for the
specified violations of the Employment
Standards Act, 2000.
56. The penalties for notices of
contravention should be raised
from $250/$500/$1,000 to
$350/$700/$1,500, respectively.
57. The Ontario Labour Relations Board
should be given an expanded
jurisdiction to impose administrative
monetary penalties of up to $100,000
per infraction and the jurisdiction to
order an unsuccessful respondent to Enforcement – a person with specific 60. Either the Director of Employment
pay the costs of the investigation. responsibility to determine when Standards should set interest rates
to initiate proceedings in which an pursuant to section 88 (5) of the
58. The Ontario Labour Relations Board
administrative monetary penalty of up Employment Standards Act, 2000;
should be given the same remedial
to $100,000 per infraction is sought or
authority as an employment standards
against a named respondent(s) and The Employment Standards Act, 2000
officer to make orders to compensate
to take carriage of the case as the should be amended to provide that
employees where violations have been
applicant in the proceedings. when orders are made by an officer
shown to have occurred and to issue
prospective compliance orders. or by the Ontario Labour Relations
Note: This recommendation to give
Board, complainants are to be
the Ontario Labour Relations Board
59. The Ministry of the Attorney General awarded pre-order and post-order
jurisdiction to impose administrative
or the Ministry of Labour should interest, calculated in accordance with
monetary penalties is intended to
appoint a designated officer of the Courts of Justice Act.
replace the Part III Provincial Offences
the Crown to act as a Director of
Act prosecution process.

THE CHANGING WORKPLACES REVIEW | An Agenda for Workplace Rights 35


Security for Employee c) provide that the remedies should f) provide the Ministry of Finance
Remuneration be available to the Director of with the authority to demand
Employment Standards, or to information and to share
61. Ontario should repeal the deemed
employees or a representative of information for the purposes
trust and statutory lien provisions
the employees where the Director of the administration and the
in the Employment Standards Act,
does not act. enforcement of the Employment
2000 and Personal Property Security
d) eliminate the requirement to file a Standards Act, 2000.
Act and replace them with legislative
provisions that: certificate in a court of competent Director Liability for Employee
jurisdiction (except for reciprocal Remuneration
a) create a priority statutory charge orders) and, instead, make an
in favour of the Director of order valid and binding upon 62. The existing provisions of the
Employment Standards against all issuance, similar to section 18 of Employment Standards Act, 2000 and
of an employer’s property to secure the Retail Sales Tax Act. However, the Ontario Business Corporations
unpaid employee remuneration, up it may be preferable to state in Act should be amended to provide
to $10,000 per employee, similar the legislation that the order of the that up to six months’ wages and up
to the priority charge arising under Director of Employment Standards to 12 months’ accrued vacation pay
section 23 of the Retail Sales is enforceable like a judgment are the responsibility of the directors
Tax Act, including provisions with and no certificate is required, as a of a corporation and that the only
respect to the enforcement of provision similar to section 18 of condition that must be met in order
that charge in the same manner the Retail Sales Tax Act may not for an employee to receive these
as a contractual security interest be effective in making the order a amounts is that the employee has
enforced under the personal judgment. The intent would be to not been paid these sums by the
property security legislation. allow for immediate enforcement, corporation.1
b) enable the Director of Employment similar to a judgement of
the Court. 63. The provisions of the Employment
Standards to take security
Standards Act, 2000 and the Ontario
for the payment of employee e) provide for the ability to cancel
Business Corporations Act should be
remuneration, give the Director and reissue an order for the
consistent.
direct rights of action to recover purpose of making corrections
employee remuneration, and without having to cancel the 64. An employee representative should be
give the Director the ability to original order, for example, where able to take proceedings or make a
take security for the payment of a director named in an order turns claim against directors on behalf of all
employee remuneration, similar out not to have been a director employees.
to the rights afforded under at the time the money became
subsections 37 (1) and (2) of the payable.
Retail Sales Tax Act.

1. Note that the ability of an Employment Standards Officer to make an order under sections 81 (1) and 106 where insolvency proceedings have been
commenced will have to be adjusted once the insolvency requirement is removed.

36 THE CHANGING WORKPLACES REVIEW | Summary Report


65. The Ministry of Labour should ensure 68. The government should make the a) the application of the provisions of
that adequate resources are allocated, review of existing exemptions a priority. the Employment Standards Act,
or continue to be allocated, and 2000 to the sector; and,
utilized for the recovery from directors 69. In accordance with the
b) enforcement issues and proactive
of unpaid amounts owing by a recommendation in Chapter 7 of the
enforcement in the sector.
corporation to an employee. full Changing Workplaces Review
report, the government should 72. The policy framework within which the
adopt a sector-specific approach committees operate should include

“Labour
The Ministry of
should ensure
to the regulation of scheduling.
The government should include
the following:

scheduling in the scope of the review a) the Employment Standards Act,


that adequate resources are of existing exemptions on hours of 2000 should apply to as many
allocated, or continue to be work, overtime, and related matters, employees as possible;
allocated, and utilized for the where warranted and practicable. As b) departures from, or modifications
recovery from directors of a priority, there should be a committee to, the norm should be limited and
unpaid amounts owing by a established to consider a sector- justifiable; and,
specific scheduling regulation in the
corporation to an employee.
” retail and fast food sectors.
c) proponents of maintaining an
exemption should bear the onus
70. The committee process should be set of persuasion that the exemption
out in the statute; however, it should is still required;
not be mandatory and should provide 73. The government should provide
SECTORAL REGULATION for flexibility in the process, as required. committees with costing information
AND EXEMPTIONS The Minister of Labour should be able on the cost to employees and savings
to initiate the committee process for to employers of any exemptions from
66. The government should establish
the review of existing exemptions or employment standards.
a committee process that may be
the development of new terms and
utilized when existing exemptions
conditions of employment in a sector 74. Although the government has
are being reviewed, when new
or subsector, or parties may request responsibility for all regulations
exemptions are being considered,
the Minister of Labour to invoke promulgated and must remain the
and when sector-specific regulations
the process. ultimate decision-maker, committees
are contemplated.
should provide the government with
71. Sectoral and subsectoral committees assistance and advice with respect
67. Committees should be composed
should be established as necessary. to exemptions.
of representatives of employers
If there are no exemption issues in
and employees for the purposes of
the sector, then a committee should 75. The organization and work of the
providing advice to government.
be established to set up a permanent committees is to be supported by
process for the discussion of: the government.

THE CHANGING WORKPLACES REVIEW | An Agenda for Workplace Rights 37


Sectoral Committees
76. The government would appoint the
members with respect to the sectoral
committees, recommended to be
established, above. The committees
would be composed of:
a) a neutral chair, whose role as
facilitator is to ensure the views
of employers and employees are
heard and to explore the possibility
of consensus. (If consensus
is achieved, the chair will
communicate the consensus and
recommendations to the Minister
of Labour in writing. If consensus
is not achieved the chair may
make a recommendation to the
government, if necessary. Chairs
of sectoral committees could
include, but would not necessarily
be limited to, vice-chairs of the
Ontario Labour Relations Board,
either full-time or part-time.
i. employees, as suggested by with experience or interest
Resulting reports of the chair
community organizations, in the sector, even in sectors
would be made public);
who are independent from any where there are few unionized
b) representatives of both large and employer working in the sector operations, as unions have
small employers, put forward and who have experience in experience in representing
wherever possible by employer the area, or who are otherwise employee interests;
organizations in the sector, selected; iv. professional associations in the
including representatives of
ii. representatives from sector that represent employee
employers who have adopted
community organizations, such interests; and
“best practices”;
as legal aid clinics, workers’ v. other persons experienced in
c) employee representatives, whom groups, and other community representing the interests of
the government will appoint from organizations; employees.
among the following:
iii. following consultations with
other trade unions, unions

38 THE CHANGING WORKPLACES REVIEW | Summary Report


d) representative(s) of government Residential Building Superintendents, follow the U.S. tests for executive
who can provide advice or Janitors, and Caretakers and administrative employees (these
information and who function in a are, in broad strokes, compatible with
supportive role to the committee; 80. An early review of the regulation the Ontario Labour Relations Board
and, applying to residential building criteria). We recommend that the
superintendents, janitors, and salary figure be 150% of the general
e) at the discretion of the caretakers is recommended because
government and upon the minimum wage (currently $11.40),
of the breadth of this group and the converted to a weekly salary of $750
recommendation of the facilitator, resulting anomalous treatment of
an expert with specialized per week, on the basis of a 44-hour
these employees compared to other work week, which is the threshold for
knowledge to advise and support similarly-situated employees in the rest
the committee on issues, e.g., the payment of overtime.
of the country.
potentially, a scheduling expert or
an industry expert. Student Minimum Wage for Those CHANGES TO BASIC
Under 18
77. Committees should be small to ensure STANDARDS
they are workable. 81. The minimum wage rate for students
under age 18 should be eliminated Part-time, Casual, Temporary
78. Service on sectoral committees over a three-year time frame. and Seasonal employees
should be unpaid except for the
Equal Pay with Comparable Full-time
chair and any experts whose advice Student Exemption from the
Employees
is sought. “Three-Hour Rule”
85. We recommend the Employment
Recommendations on Specific 82. The student exemption from the
Standards Act, 2000 be amended
Exemptions “three-hour rule” should be eliminated.
to provide that no employee shall be
Information Technology Professionals Liquor Servers’ Minimum Wage paid a rate lower than a comparable
and Pharmacists full-time employee of the same
83. The liquor servers’ minimum wage employer. The rule would not apply
79. The current regulations with respect to should be phased out over three when there is a difference in treatment
information technology professionals years. between employees on the basis
and pharmacists present sufficient of: (a) a seniority system; (b) a merit
Managers and Supervisors
complications, warranting a more system; (c) a system that measures
careful review through the process set 84. We recommend that the current earnings by quantity or quality of
out, above, before any final decisions test for managers be changed to production; or (d) another factor
are made with respect to these a “salaries plus duties” test where, justifying the difference on objective
groups. in order to be exempt from hours grounds. Section 42 (1) of the Act
of work and overtime protection, should be amended to reflect this
a manager would have to perform same approach.
defined duties, which would generally

THE CHANGING WORKPLACES REVIEW | An Agenda for Workplace Rights 39


Benefit and Pension Plan Coverage 90. Recognizing the need for predictable employment standards expertise –
schedules for employees in who may help facilitate an educated
86. We recommend that the government certain sectors and the variability discussion on the scheduling issues
initiate an urgent study on how to of scheduling requirements, the being considered.
provide at least a minimum standard government should adopt a sector-
of insured health benefits across specific approach to the regulation Right to Request
workplaces, especially to those of scheduling.
full-time and part-time employees 96. The Employment Standards Act,
currently without coverage, and to 91. Scheduling regulation in some 2000 should be amended to provide
the self-employed, including small sectors, such as fast food and retail, that, after one year of service, an
employers. should be a priority. employee has a right to request, in
writing, that the employer decrease
87. We recommend that the provincial 92. To the extent reasonably practicable, or increase his or her hours of work,
government urge the federal the Ministry of Labour should gather give him or her a more flexible
government to review the operation data and statistics related to other schedule or alter the location of his
of the private pension system, in sectors to identify those sectors most or her work. The employer should
conjunction with public programs, in need of regulation and to determine be required to give the employee
such as the Guaranteed Income priorities. an opportunity to discuss the issue
Supplement, with respect to how they and provide reasons, in writing, if
affect low earning Ontarians. 93. In accordance with recommendations the request is refused in whole or in
made, herein, in relation to Sectoral part. There should be no appeal of an
Contract Employees – Renewable Regulation and Exemptions, the employer’s decision on the merits. The
Contracts Ministry of Labour will appoint sectoral employer’s obligation to respond to an
committees to develop sector-specific employee’s request should be limited
88. The government should continue scheduling regulations.
to monitor the use of fixed-term to one request per calendar year, per
contracts in Ontario and to assess 94. The Ministry of Labour should employee.
the impact of relevant legislation in consider developing a policy 97. Any “right to request” legislation
other jurisdictions before engaging in framework for scheduling discussions must include protection from reprisal
legislative intervention. by sector, describing issues, options or retaliation for an employee who
and best practices. exercised the right.
Scheduling, Right to Request, and
the ‘Three-Hour Rule’ 95. In constituting sectoral committees The “Three-Hour Rule”
for advising on sector-specific
Sectoral Regulation of Scheduling scheduling regulations, the Ministry 98. The Employment Standards Act,
of Labour should consider making 2000 should be amended to provide
89. The Employment Standards Act, 2000
available to the committees, experts that, when an employee who regularly
should give the Ministry of Labour the
on scheduling and/or others – for works more than 3 hours a day is
authority to regulate the scheduling of
example, academics with the relevant required to report to work but works
employees by employers.

40 THE CHANGING WORKPLACES REVIEW | Summary Report


less than three hours, he or she must This provision does not apply to This recommendation is not
be paid three hours at the employee’s persons at or above a cap of 2.5 intended to have any impact on
regular wage. times the minimum wage (converted the amount of notice or termination
to a weekly or annualized salary, pay owing by the agency if it
Temporary Help Agencies based on a 40-hour week). terminates the employment of the
assignment worker except that,
Compensation Equality and Job Termination Pay
Permanency
if the end of the assignment and
102. The existing rules with respect to the end of employment by the
99. Assignment workers shall not receive notice of termination and termination agency coincide, only one payment
less compensation than a comparable pay for assignment workers, is owing, the larger of the two
employee of the client performing which rely on the temporary layoff payments.
similar work. provisions of the Employment Workplace Safety
Standards Act, 2000 in relation for Assignment Workers
This provision does not apply during
to payment of termination pay,
the first six months that an assignment
should be revoked and the following 103. With respect to the allocation of risk
worker performs work for a client.
changes made: and liability, the government should
Only a break in the assignment of
accept the principle that the client,
longer than three months will negate The agency should provide to not the agency, is responsible for
the obligation to compensate the the assignment worker notice injuries incurred in a workplace by
assignment worker equally to a with respect to the end of the an assignment worker.
comparable employee of the client assignment with a client, whether
performing similar work. the termination was caused by Hours of Work and Overtime
the agency or the client, in an
100. A client shall make best efforts to Employee Consent
amount equivalent to the amount
ensure assignment workers are
of notice currently required under 104. The Ministry of Labour’s practice
aware of all available openings for
the Employment Standards Act, of permitting employee consent
jobs with the client and should
2000. If notice is not given, unless agreements to be obtained
consider, in good faith, any
the employee is referred to work electronically should be set out in
assignment worker who applies for
for other clients of the agency, the Employment Standards Act,
a position.
termination pay is payable by the 2000 or in the Regulations.
101. Prior to terminating the employment agency for the number of days
relationship with an assignment equal to the amount of the notice, 105. An option for obtaining group
worker, the client shall consider, in which amount must be paid within consent to work overtime, or to
good faith, whether the assignment a period of 13 weeks following the other hours of work rules, should
worker is suitable for an available end of the assignment. Each day be made available through a secret
position with the client. of work reduces the amount of ballot vote on a sectoral basis, if it is
termination pay owing. appropriate for that sector.

THE CHANGING WORKPLACES REVIEW | An Agenda for Workplace Rights 41


Requirement for Ministry of Labour Blended Overtime Rate Personal Emergency Leave –
Consent to Work Longer Than 48 Hours Domestic Violence
a Week 110. Overtime should be based on the
rate in force for the work performed, 114. Section 50 of the Employment
106. The requirement for obtaining not on a blended rate if an employee Standards Act, 2000 should
Ministry of Labour consent to work has more than one position. be amended to provide that
48 – 60 hours a week should be an employee can use personal
repealed. Leaves of Absence emergency leave days if the
employee is or their minor children
The 11-Hour Rule Personal Emergency Leave
are a victim of domestic violence.
107. Maintenance of the status quo. 111. We recommend the elimination of
115. We also recommend that, in
The Ministry of Labour should be the 50-employee threshold and
implementing domestic violence
open to considering varying the that the personal emergency leave
leave entitlement as part of section
11-hour rule on a sectoral basis, if provisions of the Employment
50 of the Employment Standards
appropriate. Standards Act, 2000 be made
Act, 2000, the Ministry of Labour
available to all employees in Ontario.
Overtime and Overtime Averaging consider the definitions of domestic
Personal Emergency Leave – violence and situations of domestic
108. The trigger for overtime should Bereavement violence referred to in the Manitoba
remain at 44 hours per week. legislation as initial guidelines and
112. We recommend that bereavement should stipulate in the Employment
109. Overtime averaging should only be leave be removed from the Standards Act, 2000 that domestic
permitted where it would allow for a Employment Standards Act, violence leave can be utilized for the
compressed work week, continental 2000’s personal emergency purposes set out in the Manitoba
shift or other flexibilities in employee leave provisions and be made an legislation.
scheduling desired by employees, or independent entitlement of up to
to provide for employer scheduling three unpaid days for each of the 116. Finally, we recommend that the
requirements where the total family members covered by the Employment Standards Act, 2000
number of hours worked does not existing personal emergency leave provide that all information related
exceed the threshold for overtime provisions. It should not be limited to, and given by, an employee to
over the averaging period. Overtime by an annual restriction and it should support the taking of domestic
averaging should not be permitted be applicable to all employers. violence leave must be kept
for other purposes, unless a specific confidential, with restricted access
case can be made by an industry 113. We recommend that the personal to no more than two managerial
or sector for averaging on a emergency leave provisions be or human resources personnel
sectoral basis. amended to provide an annual and must also be kept separate
entitlement of seven days for all the and apart from any personnel
reasons currently covered in the file otherwise maintained by the
provisions, except bereavement. employer.

42 THE CHANGING WORKPLACES REVIEW | Summary Report


Crime-Related Child Death or
Disappearance Leave

120. We recommend that the


Employment Standards Act, 2000
be amended by expanding crime-
related child death or disappearance
leave to provide for a leave of up to
104 weeks with respect to:
yy the death of a child
yy the crime-related death of a
child
yy the crime-related disappearance
of a child.

Public Holiday Pay


Number of Public Holidays

121. No changes are recommended.


The Rest of the Public Holiday Standard
(Part X)

Sick Days of its minimum requirements, but 122. Part X of the Employment Standards
employers can decide to add to Act, 2000 should be reviewed in its
117. An employer should be obligated the entitlements provided under entirety, revised, and replaced by
to pay for a doctor’s note if the that section. statutory provisions that are simpler
employer requires one. and easier to understand and apply.

Interaction between Company Policies Other Leaves Vacation with Pay


and the Personal Emergency Leave Family Medical Leave
Provisions of the Employment Standards 123. We recommend increasing vacation
Act, 2000 119. We recommend that the family entitlement to three weeks after
medical leave provisions of the five years of employment with the
118. We recommend that section 50 of Employment Standards Act, 2000 same employer, and making a
the Employment Standards Act, (section 49.1) be amended to provide corresponding amendment to the
2000 be amended to provide that for family medical leave of up to 26 vacation pay provisions (i.e. at least
employers must comply with all weeks in a 52-week period. 6% vacation pay).

THE CHANGING WORKPLACES REVIEW | An Agenda for Workplace Rights 43


WHO IS AN EMPLOYER AND the dependent contractor is in a EXCLUSIONS FROM
WHO IS AN EMPLOYEE position of economic dependence COLLECTIVE BARGAINING
upon, and under an obligation to
124. The “intent or effect” test of the perform duties for, that person more Domestic Employees
related employer section in the closely resembling the relationship
Employment Standards Act, 2000 of an employee than that of an 130. The domestic workers exclusion
(section 4) should be repealed. independent contractor; should be removed from the Labour
Section 4 should be amended by Relations Act, 1995.
deleting paragraph 4 (1) (b). The 126. The Employment Standards Act,
section should otherwise remain 2000 should provide that in any Persons Employed in Hunting
unchanged. case where there is a dispute about or Trapping
whether or not a worker is an
The new section 4 (1) would, 131. The exclusion of persons employed
employee, the person receiving the
therefore, provide as follows: in hunting or trapping should be
worker’s services has the burden
removed from the Labour Relations
of proving that the person is not an
4. (1) Subsection (2) applies if Act, 1995.
employee covered by the Act and
associated or related activities or
has a concomitant obligation to
businesses are or were carried on Agricultural and Horticultural
adduce all relevant evidence with
by or through an employer and one Employees
regard to the matter.
or more other persons. 132. Agricultural and horticultural
127. The Ministry of Labour should employees should be included in
125. The definition of employee in the
make misclassification a priority the Labour Relations Act, 1995
Employment Standards Act, 2000
enforcement issue. and be given the same rights and
should be expanded to include a
dependent contractor defined, as in protections as other employees.
the Labour Relations Act, 1995, as EXCLUSIONS 133. The government should consider
follows: whether protection of the family
Interns
“dependent contractor” means a farm is a pressing and substantial
person, whether or not employed 128. Section1 (2) of the Employment objective warranting the exclusion
under a contract of employment, Standards Act, 2000, with respect of some or all persons employed on
and whether or not furnishing to persons receiving training, should a family farm from Labour Relations
tools, vehicles, equipment, be removed. Act, 1995 coverage. We offer no
machinery, material, or any other specific advice to the government
thing owned by the dependent Crown employees on the appropriate definition of
contractor, who performs work 129. The provision of the Employment “family farm” but caution that any
or services for another person Standards Act, 2000 that provides definition should not be overbroad
for compensation or reward on a partial exemption for designated so as to impair the Charter rights of
such terms and conditions that Crown employers should be other agricultural workers.
eliminated.

44 THE CHANGING WORKPLACES REVIEW | Summary Report


134. The Labour Relations Act, 1995 the impasse is not resolved on a Act, 1995 and be given the same
should be amended to provide the voluntary basis by the parties to the rights and protections as other
Ontario Labour Relations Board with dispute. The mechanisms for final employees.
authority to prohibit or limit a strike dispute resolution should include:
by employees of an employer in the final offer selection (including 140. With respect to the professionals
agricultural or horticultural sector issue by issue final offer selection); whose inclusion may result from
where the employer’s enterprise mediation/arbitration; arbitration; our recommendations, the Labour
needs to be maintained to protect or any other dispute resolution Relations Act, 1995 should be
some or all of planting, growing and mechanism which is capable of amended to provide the Ontario
harvesting or the integrity, health resolving in a fair, effective and Labour Relations Board with
and safety and/or security of plant expeditious manner disputes that authority to prohibit or limit a strike
or animal life. arise between employees and by those providing essential services
employers. to a community.
135. Where a strike is prohibited, the
Ontario Labour Relations Board 141. Where a strike by professional
Provincial Judges employees is prohibited or limited,
should be given authority in
the Labour Relations Act, 1995 137. The exclusion of provincial judges the Ontario Labour Relations
to be able, at its discretion, to should remain unchanged. Board should be given authority
require mediation of the collective in the Labour Relations Act,
bargaining dispute and to request A Person Employed As a Labour 1995 to be able, at its discretion,
the mediator, if the matter is not Mediator or Labour Conciliator to require mediation of the
resolved, to make recommendations collective bargaining dispute and
138. The exclusion of a person to request the mediator to make
for terms of settlement of the labour employed as a labour mediator or
dispute including a recommendation recommendations for terms of
labour conciliator should remain settlement of the labour dispute,
on an appropriate dispute resolution unchanged.
mechanism in the absence of a including a recommendation on
mediated settlement. an appropriate dispute resolution
Members of the Architectural, mechanism in the absence of a
136. The Labour Relations Act, 1995 Dental, Land Surveying, Legal mediated settlement.
should be amended to provide or Medical Profession Entitled to
that the Ontario Labour Relations Practice in Ontario and Employed 142. The Labour Relations Act, 1995
Board must impose an efficient in a Professional Capacity should be amended to provide
and effective dispute resolution 139. Members of the architectural, that the Ontario Labour Relations
mechanism to resolve collective dental, land surveying, legal or Board must impose an efficient
bargaining impasse in any case medical profession entitled to and effective dispute resolution
where it has abrogated or limited practise in Ontario and employed mechanism to resolve collective
the right to strike for agricultural or in a professional capacity should bargaining impasse in any case
horticultural employees and where be included in the Labour Relations where it has abrogated or limited
the right to strike for professional

THE CHANGING WORKPLACES REVIEW | An Agenda for Workplace Rights 45


employees providing essential ACQUISITION OF the Labour Relations Act, 1995
services and where the impasse BARGAINING RIGHTS should be available, unless the
is not resolved on a voluntary union has bargained in bad faith
basis by the parties to the dispute. A Recommended Package or is uncompromising without
The mechanisms for final dispute reasonable justification. Where
resolution should include: final offer Certification Process collective bargaining between
selection (including issue by issue 144. The secret ballot process for the parties has not resulted in a
final offer selection); mediation/ certification should be preserved, collective agreement, the matter
arbitration; arbitration or any other provided that the following should be referred to an expedited
dispute resolution mechanism recommendations, 145 -149 below, and intense mediation/arbitration
which is capable of resolving in are also accepted: process and mediated either by a
a fair, effective and expeditious person selected by the parties or by
manner disputes that arise between Remedial Certification (Certification the Ontario Labour Relations Board
professional employees and without a Vote) in the event the parties are unable
employers. to agree.
145. We recommend that section 11 of
A Person Who Exercises Managerial the Labour Relations Act, 1995 be An Intensive Mediation Process for First
Functions or is Employed in a revised to provide as follows: Contracts
Confidential Capacity in Matters yy Where an employer, an 147. The Labour Relations Act, 1995
Relating to Labour Relations employers’ organization, or should be amended to enable an
143. The exclusion regarding managers a person acting on behalf of “intensive mediation” approach
and those employed in a confidential an employer or employer’s similar to the approach currently in
capacity in matters relating to labour organization contravenes this use in British Columbia. It should
relations should remain unchanged. Act so that the true wishes of the generally follow the statutory
employees of the employer or scheme in British Columbia
of a member of the employers’ with some different or additional
organization are not likely to be elements:
“Act,The1995
Labour Relations
should be
ascertained, the Board, shall
a) Either the employer or the
on the application of the trade
amended to enable an union, certify the trade union union may apply to the Chair
‘intensive mediation’ approach as the bargaining agent of the of the Ontario Labour Relations
employees in the bargaining unit. Board to appoint a mediator
similar to the approach
to help the parties reach a first
currently in use in British First Contract Arbitration collective agreement once
Columbia.
” 146. Where remedial certification under
the following thresholds have
been met: (1) the parties have
section 11 is ordered, first contract bargained collectively but failed
arbitration under section 43 of to conclude an agreement; and

46 THE CHANGING WORKPLACES REVIEW | Summary Report


(2) the union has obtained a yy the terms of the first j) Any agreement imposed upon
strike mandate. collective agreement for the the parties is for a term of two
b) The second requirement in parties to consider; and/or, years and is binding.
(a), above, does not apply yy a process for concluding the Timeliness of Displacement and
where the union has obtained first collective agreement, Decertification Applications
remedial certification, or where including one or more of the
the union can demonstrate that following: 148. Where a union is certified under
employer misconduct following • further mediation; section 11 of the Labour Relations
certification has resulted in Act, 1995, applications for
• mediation/arbitration or
the union becoming unable to decertification or certification
arbitration alone, by a
obtain a successful strike vote. should be untimely until the open
single arbitrator or by the
c) Once an application is filed, the Ontario Labour Relations period of the collective agreement
parties cannot engage in a strike Board; or, subsequently entered into, unless
or lock-out unless subsequently first contract arbitration is denied, in
• strike or lock-out.
so permitted by the Ontario which case, the current timeliness
Labour Relations Board. g) If the parties do not accept rules should apply. Where a union
d) An application must include a the mediator’s recommended or employer apply for intensive
list of the disputed issues and terms for the first collective mediation under the new proposed
the position of the party making agreement or if an agreement rules or for first contract arbitration
the application on those issues. is not reached within 20 days under section 43 of the Act, no
Within 5 days, the other party of the mediator’s report, the application for decertification or
must give a list of disputed Chair must direct a method for certification should be allowed until
issues and their position on resolving the dispute from the that process is completed.
those issues to the other party above list. Access to Employee Lists and
and to the Ontario Labour h) A union that has obtained Contact Information
Relations Board. remedial certification is prima
e) The Chair will appoint a mediator facie entitled to have the dispute 149. We make the following
within 7 days of receiving the subject to mediation/arbitration recommendations:
application. or arbitration, unless its conduct
a) Upon application by a union, if
f) If within 20 days the mediation in bargaining is found to
it appears to the Ontario Labour
is unsuccessful and a first disentitle it to such a remedy.
Relations Board that a union has
collective agreement is not i) If the Chair orders further the support of approximately
reached, the mediator must mediation or arbitration, the 20% of the employees in a
report back to the Chair and parties cannot engage in a strike bargaining unit, the Board
recommend the following steps: or lock-out until subsequently shall require the employer to
permitted to do so. disclose to the union the list of

THE CHANGING WORKPLACES REVIEW | An Agenda for Workplace Rights 47


employees in the bargaining d) It shall not be a breach of the 151. The Ontario Labour Relations
unit, together with the work common law or of any statute Board should modernize its rules
location, address, phone for the employer to provide permitting electronic membership
number and personal email the list of employees in the evidence as soon as possible, using
address of each employee. The proposed bargaining unit to the either the same tools as British
same requirement shall apply union upon a direction from the Columbia or such other ones as it
if, upon application, it appears Board. devises to ensure the authenticity of
to the Board that approximately e) The union shall not use the list electronic membership evidence.
20% of the employees in an or any information taken from
existing bargaining unit have it at any time for any purpose Electronic Voting
demonstrated that they no other than to seek the support 152. The Ontario Labour Relations Board
longer wish to be represented of members of the bargaining should be given the explicit power to
by a union; the same list shall unit. conduct voting procedures outside
be provided to the employee
f) If the union is provided with a the workplace, including telephone
representative.
copy of the list pursuant to an and internet voting.
b) The Board may meet with the order of the Board, employees
parties but is not required to in the bargaining unit may ask 153. The Ontario Labour Relations Board
hold a hearing or engage in a the employer for the same list should prioritize the investigation
formal consultation process. and the employer shall provide and development of electronic
c) The Board shall not disclose it. The employees to whom the voting systems that are quick,
the employer list to the union list is provided shall not use the efficient and preserve the secrecy
unless it considers it necessary information for any purpose of the ballot such that this becomes
to disclose some or all of the unrelated to the organizing the standard form of voting.
list in order to fairly determine campaign. 154. Labour Relations Officers should
the matter, in which case it g) The same procedure shall have the explicit authority and
shall disclose only as much apply if approximately 20% duty to give binding directions
information as may be necessary of employees in an existing and to make arrangements in the
for the union to respond, and bargaining unit wish to decertify workplace that assure the neutrality
it may impose such terms the union. of the voting process.
as it considers necessary to
preserve the confidentiality of Electronic Membership Evidence Consolidation and Amending of
the list so that the union does
150. The government and the Ontario Bargaining Units
not obtain it on a permanent
basis. The Board shall also not Labour Relations Board should 155. The Labour Relations Act, 1995
disclose to the employer the prioritize the provision of funds to should be amended based
number of employees the union modernize the electronic submission on section18.1 of the Canada
has demonstrated as being of information to the Board. Labour Code with the important
members of the union.

48 THE CHANGING WORKPLACES REVIEW | Summary Report


modification that the test should be broad authority to determine which the same geographic area, could
that the Ontario Labour Relations factors it considers appropriate and, be required by the Ontario Labour
Board can review the structure if it also, whether the proposed new Relations Board to bargain together
is satisfied that the bargaining unit unit and/or terms of the agreement centrally, with representatives of the
or units are no longer appropriate contribute to the development of franchisee employers in that area, as
for collective bargaining in the an effective collective bargaining set out below:
circumstances. relationship and serve the
development of collective bargaining a) An employer bargaining agency,
156. The Labour Relations Act, 1995 in the sector/industry. The remaining composed of representatives of
should be amended to provide that provisions of the new section would the franchisees, will represent
where the Ontario Labour Relations mirror, as the context required, the the franchisee employers at the
Board certifies a union (or council provisions of section 18.1 of the bargaining table. The Board
of unions) for a bargaining unit, Canada Labour Code. For example, should be given the authority
including certification without a vote votes would not be required to require the formation of an
under section 11, and the same since the unit being added would employer bargaining agency
union or council of unions is certified have already met the certification and set its terms, if necessary.
for a unit of employees in a separate requirements. The employer’s obligation to
location of the same employer or bargain centrally would remain
for an additional bargaining unit at so long as the union held
the same location, whether or not
a collective agreement is in effect in “Relations
The Ontario Labour
Board should
bargaining rights.
b) To mirror the recommendation
the prior certified unit, the Board, on on newly certified locations of
request, can review the structure of be given the explicit power to
a single employer, the Ontario
the bargaining units and consolidate conduct voting procedures Labour Relations Board
or vary the description as the Board outside the workplace, would have the authority, if
may determine. The Board will including telephone and requested by a party involved,
have the power to apply, with or
without modifications, the terms
internet voting.
” to direct that the terms of a
collective agreement between
of an existing collective agreement a franchisee and a union could
between that employer and union, be extended to apply, with or
to the newly constituted unit. The Broader-Based Bargaining without modifications, to a newly
section will apply in sectors or certified bargaining unit involving
industries where employees have Franchisees
the same union and a different
been historically underrepresented franchisee (in the same franchise
157. We recommend a model
by unions. organization). The Board would
wherein certified, or voluntarily
recognized, bargaining units of also have the power to require
The legal test should give the
different franchisees of the same that the franchisee employers
Ontario Labour Relations Board
franchisor by the same union in bargain centrally.

THE CHANGING WORKPLACES REVIEW | An Agenda for Workplace Rights 49


c) In exercising its authority, the these could be consolidated services and labour are provided in
Board should consider whether as a single bargaining unit of the arts and entertainment sectors
the proposed terms and the same employer pursuant to of the economy, for the purposes of
bargaining structure contribute the recommendation on newly supporting the artistic endeavour in
to the development of an certified locations of a single those sectors and those who work
effective collective bargaining employer as well. In addition, in them.
relationship and serve the if it was the same union as the
development of collective union centrally bargaining with Added Legislative Tools Needed to
bargaining in the sector/industry. the franchisees that certified the Facilitate Sectoral Bargaining

d) Each franchisee would have franchisor, collective bargaining 160. The government should convene a
individual responsibility for with the franchisor employer consultation on whether the Labour
compliance with the resulting would be part of the franchisee Relations Act, 1995 should be
collective agreement and would central bargaining process. amended to include:
sign an agreement binding on f) In centralized bargaining, any
its location(s). In this model, strike or ratification vote would yy mandatory accreditation of
agreements by the parties to involve the entire constituency employer bargaining agencies;
distinct provisions applicable to of bargaining units and not the yy mandatory councils of unions;
some but not other franchisees individual bargaining units. and,
can be dealt with in collective yy mandatory certification for
bargaining. Publicly-Funded Home Care
multiple employers.
e) Multiple locations owned by the 158. The government should conduct
same franchisee, a common an expedited inquiry, in consultation
situation in the franchise industry, with the parties involved in the
RELATED AND JOINT
could be consolidated as a single government-funded home care EMPLOYER
bargaining unit by the Board industry, into whether and how
in appropriate circumstances Temporary Help Agencies
sectoral bargaining could be
pursuant to the recommendation established in the sector within a 161. Persons assigned by temporary help
on newly certified locations reasonable time frame. The inquiry agencies to perform work for clients
of a single employer, but that should include the issue of dispute of the agency, or persons assigned
employer would also participate resolution. by other suppliers of labour to
in central bargaining under perform work for a person, shall be
this recommendation as a Creative Sector deemed to be employees of the
franchisee of the same franchisor. client or of the person, respectively,
159. We recommend that Ontario
Similarly, if corporate stores for the purposes of the Labour
conduct an inquiry and consultation
owned by the franchisor of Relations Act, 1995.
with all affected interest groups to
the franchisees governed by
examine potential changes to the
central bargaining were certified,
laws, which affect how personal

50 THE CHANGING WORKPLACES REVIEW | Summary Report


order, order, direction, declaration or
ruling made under this Act is guilty
of an offence and on conviction is
liable,
a) if an individual, to a fine of not
more than $5,000; or
b) if a corporation, trade union,
council of trade unions or
employers’ organization, to a
fine of not more than $100,000.

Our Recommendation should


be seen in the context of and
as an integral part of other
recommendations in this report
relating to the remedial jurisdiction of
the Ontario Labour Relations Board,
including giving the Board additional
authority to order arbitration of
collective bargaining disputes
as well as the authority to make
REMEDIAL POWERS OF Prosecutions and Penalties interim orders so as to be able to
THE OLRB better protect the exercise of rights
164. We recommend that the provisions
by employees under the Labour
of the Labour Relations Act,
Interim Orders Relations Act, 1995.
1995 relating to prosecutions
162. We recommend that section 98 of and offences remain unchanged
the Labour Relations Act, 1995 be except for section 104 (1) of the Act RIGHT OF STRIKING
repealed, and; where it is recommended that the EMPLOYEES
maximum amount of fines potentially
163. We recommend that the power of imposed on conviction be increased 165. Section 80 of the Labour Relations
the Ontario Labour Relations Board as follows: Act, 1995 should be amended
to issue interim orders and decisions by eliminating the six-month time
pursuant to section 16.1 (1) of the Every person, trade union, council period for striking employees to
Statutory Powers Procedure Act be of trade unions or employers’ make an application to return to
restored. organization that contravenes work. The section should otherwise
any provision of this Act or of any remain unchanged.
decision, determination, interim

THE CHANGING WORKPLACES REVIEW | An Agenda for Workplace Rights 51


166. The Labour Relations Act, 1995 SUCCESSOR RIGHTS CONCLUDING
should be amended to provide for RECOMMENDATIONS
arbitration, by the Ontario Labour 168. Successor rights should be applied
Relations Board or by an arbitrator, to the building services industries 172. We recommend that Ontario create
of: (security, food services, cleaning) an Ontario Workplace Forum of
and home care funded by the senior business and labour leaders,
a) the refusal to reinstate an government. employee advocates, and senior
employee at the conclusion of a government officials, with an
strike or lock-out; 169. A regulation-making authority should
independent Chair facilitator. The
be added to the Labour Relations
b) any discipline of an employee by Committee should meet no less
Act, 1995 to allow for the possible
an employer during the course than quarterly and have modest
expansion of coverage to other
of a legal strike or lock-out; and support from government. The
services or sectors in the future.
c) any discipline of an employee by Forum would discuss the impact of
an employer after the expiry of a changes in the workplace and the
collective agreement. ABILITY OF ARBITRATORS TO economy from the perspective of the
EXTEND ARBITRATION TIME stakeholders and attempt to achieve
consensus on appropriate measures
JUST CAUSE PROTECTION LIMITS IN THE ARBITRATION that could be taken by government
PROCEDURE and by the stakeholders. The
167. It is our recommendation that “just
cause” protection should not be 170. We recommend that section 48 Forum would also monitor, support
extended to all employees in a (16) of the Labour Relations Act, and make recommendations to
bargaining unit from the date of 1995 be amended to include the improve any changes implemented
certification to the date of the first arbitration procedure, as well as by government as a result of this
collective agreement. the grievance procedure, so that an Review.
arbitrator has the power to relieve
Our Recommendation should 173. We recommend that Ontario make
against time limits if he or she is
be seen in the context of, and an ongoing commitment to the
satisfied that there are reasonable
as an integral part of, other process of independent review of
grounds for the extension and
recommendations in this Report. In the new Workplace Rights Act every
the opposite party will not be
particular, it should be seen in the five to seven years.
substantially prejudiced.
context of our recommendation on
the Right of Striking Employees,
above. 
 CONCILIATION BOARDS
171. We recommend that the Labour
Relations Act, 1995 be amended
to remove the conciliation board
provisions.

52 THE CHANGING WORKPLACES REVIEW | Summary Report


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